The story so far: The Union government has withdrawn the special status conferred on Jammu and Kashmir (J&K) under Article 370 of the Constitution. It has also divided the State into two regions and declared them as Union Territories. Thus, the government has made a significant alteration in the unique form of federalism that it has been practising in respect of the sensitive border State, which has seen war, terrorism and conflict since Independence. Instead, it has put in place an alternative form of federalism in which the two new units will be administered by the Centre.
How is this debate concerned with federalism?
Nations are described as ‘federal’ or ‘unitary’, depending on the way in which governance is organised. In a unitary set-up, the Centre has plenary powers of administration and legislation, with its constituent units having little autonomy. In a federal arrangement, the constituent units are identified on the basis of region or ethnicity, and conferred varying forms of autonomy or some level of administrative and legislative powers. As the current political status of J&K — as two Union Territories — is a form of demotion from the sort of autonomy it enjoyed, it becomes an issue concerning federalism.
Why is India called ‘quasi-federal’?
The Supreme Court has commented on the nature of the Indian Union in several judgments. It has noted that the essence of a ‘federation’ is the existence of the Union of the States, and the distribution of powers between them. In S.R. Bommai vs. Union of India , it notes the commonly invoked model of federalism is the United States, by which it is clear that it is a federation of States. These States were independent and sovereign in their territories, and decided to form a federation. Their territories cannot be altered by the federal government. In India, on the other hand, Parliament has the power to admit new States, create new States, alter their boundaries and their names, and unite or divide the States. In the latest exercise, the unprecedented act of converting a State into a Union Territory has also been performed. The concurrence of States is not needed for the formation and unmaking of States and Union Territories. Further, the court noted the existence of several provisions of the Constitution that allow the Centre to override the powers of the States. In legislation, there is a Concurrent List, unlike in the U.S., which outlines the powers of the federal government, and leaves any matter not mentioned in it as the legislative field for the States. In India, the residuary powers of legislation, that is the power to make law in a field not specified in the Constitution, is vested in Parliament, whereas in the U.S., residuary powers are with the States. Further, in fiscal matters, the power of the States to raise their own resources is limited, and there is a good deal of dependency on the Centre for financial assistance.
Even though the States are sovereign in their prescribed legislative field, and their executive power is co-extensive with their legislative powers, it is clear that “the powers of the States are not coordinate with the Union”. This is why the Constitution is often described as ‘quasi-federal’.
Why is it said that India has asymmetric federalism?
The main forms of administrative units in India are the Centre and the States. But there are other forms, too, all set up to address specific local, historical and geographical contexts. Besides the Centre and the States, the country has Union Territories with a legislature, and Union Territories without a legislature.
When the Constitution came into force, the various States and other administrative units were divided into Parts A, B, C and D. Part A States were the erstwhile provinces, while Part B consisted of erstwhile princely states and principalities. Part C areas were the erstwhile ‘Chief Commissioner’s Provinces’. They became Union Territories, and some of them initially got legislatures and were later upgraded into States. Himachal Pradesh, Manipur, Tripura, Mizoram, Arunachal Pradesh and Goa belong to this category.
Puducherry and Delhi have legislatures, while the other territories under the Centre do not have legislatures or a ministerial council to advise the administrator. Even between Puducherry and Delhi, there is a notable difference. Puducherry has legislative powers on any matter mentioned in the State List or the Concurrent List, insofar as it applies to the Union Territory. Delhi, which has the same field, has three further exceptions: police, land and public order are outside its purview. However, Parliament has overriding powers over any law made by the Assembly in the Union Territories.
Puducherry has one more unique feature. Despite being a single administrative unit, the Union Territory is ‘non-contiguous’. That is, its territory is not limited to one extent of land. Besides Puducherry and its adjoining areas, it has enclaves located within other States: Karaikal (within Tamil Nadu) Yanam (within Andhra Pradesh) and Mahe (within Kerala).
Just as the Centre and the States do not have matching powers in all matters, there are some differences in the way some States and other constituent units of the Indian Union relate to the Centre. This creates a notable asymmetry in the way Indian federalism works.
What is special status? How did it work in J&K?
The foremost example of asymmetry among Centre-State ties was in the way J&K related to India until August 6, 2019, the day the President declared that its special status ceased to be operative. Under Article 370, the State was allowed to have its own Constitution, its own definition of ‘permanent residents’, the right to bar outsiders from holding property, and the privilege of not having any Indian law automatically applicable to its territory. Indian laws had to be specifically permitted by its Assembly before it could operate there. It was allowed to have its own Penal and Criminal Procedure Codes. The President was empowered to notify, from time to time, the provisions of the Constitution that could be extended to the State, with or without modifications.
What does Article 371 provide?
Special status is not unique to Kashmir. However, the sort of asymmetry seen in J&K’s relationship to the Centre is not seen in other States. The ‘special provisions’ applicable to some other States are mainly in the form of empowering the Governors to discharge some special responsibilities. These States are Maharashtra, Gujarat, Manipur, Nagaland, Sikkim and Arunachal Pradesh. The common feature is that wherever Governors have been asked to discharge special responsibilities, their discretionary power overrides the process of consultation with the respective Council of Ministers.
Article 371 says the Governor of Maharashtra has a special responsibility to establish separate development boards for Vidarbha, Marathwada, and the rest of the State, while the Governor of Gujarat has a similar responsibility towards Saurashtra, Kutch and the rest of Gujarat. The responsibilities cover equitable allocation of funds for development expenditure, and providing facilities for technical education and vocational training.
Article 371A confers special status on Nagaland. Under this provision, no law made by Parliament in relation to Naga customary law and procedure, including civil and criminal justice matters, and ownership or transfer of land and resources will apply to Nagaland, unless the Legislative Assembly of Nagaland decides so. The protection of Naga laws and customs was written into the Constitution following the July 1960 agreement between the Centre and the Naga People’s Convention, under which the State was later created. Further, the Governor of Nagaland has a ‘special responsibility’ regarding law and order in the State.
Article 371B contained a special provision for Assam under which a committee of legislators from the tribal areas was formed to look after their interest. The tribal areas later became Meghalaya State.
Under Article 371C, the Hill Areas of Manipur ought to have a committee of legislators. The Governor has a special responsibility to make an annual report to the President on the administration of the Hill Areas. The Centre is empowered to give directions to the State as far as these areas were concerned.
Article 371D is a detailed provision under which the President can pass an order to provide equitable opportunities and facilities to people belonging to different parts of Andhra Pradesh in public employment and education. In particular, the President can create local cadres in various classes of employment and allot civil posts to specified local cadres only. The President can specify any part of the State as a ‘local area’ for this purpose. To give effect to this arrangement, an Administrative Tribunal has been set up. No court, other than the Supreme Court, has any power of superintendence over this tribunal.
Article 371F incorporated special provisions after the addition of Sikkim to India. One major objective was to grant protection to existing laws in Sikkim so that they are not declared unconstitutional after being brought under the Constitution of India.
Article 371G contains special provisions to preserve the religious and social practices of Mizos in Mizoram and their customary law and procedure and administration of criminal and civil justice, besides ownership of land.
Article 371H vests a special responsibility on the Governor of Arunachal Pradesh with respect to law and order. It makes clear that the Governor shall discharge this function after consulting the Council of Ministers, but exercise his individual judgment as to the action taken.
Are there any other examples of decentralisation of power?
There is another significant tier of administration under the larger framework of asymmetric federalism. The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram. These create autonomous districts and autonomous regions. Any autonomous district with different Scheduled Tribes will be divided into autonomous regions. These will be administered by District Councils and Regional Councils. These Councils can make laws with respect to allotment, occupation and use of land, management of forests other than reserve forests and water courses. Besides they can regulate social customs, marriage and divorce and property issues.
In Assam, the Karbi-Anglong Autonomous Council, Dima Hasao Autonomous District Council and the Bodoland Territorial Council have been set up under the Sixth Schedule. Another six autonomous councils have been formed by Acts of the legislature.
Ladakh has two autonomous hill development councils (Leh and Kargil). The Darjeeling Gorkha Hill Council is in West Bengal.
With inputs from Sumant Sen
