As India completes 75 years of Independence this August, the time is apt for us to look at the constitutional, institutional, political and fiscal arrangements that take into account the plurality of our country. It is a nation where four major religions of the world find abode; its Muslim population is the third largest in the world; and Indians speak languages belonging to five different families. Such diversity and plurality call for an arrangement that can pave the way for accommodation and integration reflected in the existing system of asymmetrical federalism.
India is not the only country with asymmetrical arrangements in its federal setup. Belgium, Germany, Canada and Spain are among other such examples. Thus this normative idea is neither new nor only locally relevant. As a matter of fact, in the neoteric time, we see governments formulating federal policies to deal with State-specific issues and concerns. And if one looks clinically at the Indian model of asymmetrical federalism, one can gauge it based on the principle of weighted and differentiated equality. This principle calls for equal treatment of all States while being mindful that some States are more equal and unequal than others. So, the capacity to accommodate various social groups and their interests makes India a thriving federal democracy as it displays enormous asymmetric characteristics.
While constructing an asymmetrical framework, our founding fathers chose the salad bowl approach instead of the melting pot approach. Recognising the existing pluricultural society in India necessitated such a choice. Recognising the distinctive cultural differences in the country and permitting self-rule within the scheme of a shared rule to territorially concentrated minorities is how asymmetrical federalism works in India. Such functioning pertains to de facto and de jure asymmetry, where the former is abundant while the latter is limited. Furthermore, such an arrangement only proves that an asymmetrical constitutional setup is indisputably necessary for a multicultural and multinational country such as India to protect the rights of the community and the minorities. This setup facilitates the accommodation of multiple yet complementary identities.
In this regard, it is necessary to understand the distinction made by Ronald Watts between political and constitutional asymmetry, both of which exist in our country. While in every federal nation the former is based on the territorial and demographic sizes of the constituent units, the latter characterises the Constitution’s extension of legislative and executive powers to the constituent units. So when we find representation of States in the Rajya Sabha based on their population, it is a political asymmetry. That is why States such as Uttar Pradesh have 31 seats in the Rajya Sabha, whereas Meghalaya and Mizoram have just one each.
Self-rule within shared rule
We find constitutional asymmetry in Article 370 (now diluted) and in the special provisions and powers extended to Nagaland, Mizoram and others in the omnibus Article 371. The parliamentary statute cannot be implemented in the northeast States mentioned above without the consent of the legislatures of these States. Specifically, the provisions under Article 371 requiring the State legislature’s permission before implementing any parliamentary law exemplify asymmetrical provisions protecting the religious and social practices, customary laws and procedures of Nagas and Mizos. In addition, creation of the Autonomous District Council as per the Sixth Schedule also acknowledges the socio-cultural, political and historical rights of the tribes of the Northeast, thereby facilitating the provisions of self-rule within the scheme of shared rule.
Furthermore, the Indian asymmetrical setup has evolved to include another type of asymmetry, i.e. Union Territories (UTs). Their establishment is in line with the spirit of federal asymmetry. These are special federating units that have been created multiple times. However, the reasons for their creation have been different. UTs were too small to be declared as States or could not be merged with a neighbouring State due to prevailing cultural dissimilarities, inter-State indifferences, extensive isolation and other specific needs, as in the case of National Capital Territory (NCT). Among all the UTs, Delhi, Puducherry and Chandigarh are distinct examples. Since 2019, we now have Jammu and Kashmir as a UT with a legislative assembly and Ladakh as a UT without.
Delhi’s case is in itself a remarkable example of asymmetrical federalism where we witness the appointment of the Chief Minister of Delhi by the President of India on the recommendation of the Lieutenant Governor (LG). This provision is in line with the special status of Delhi as the NCT. However, the difference between Puducherry and Delhi lies in the scope of their jurisdiction. While Puducherry has law-making power over subjects such as land, police and civil services, this is not the case with Delhi. And although there has been a long pressing demand for extending statehood status to Delhi, the Government of National Capital Territory of Delhi (Amendment) Act of 2021 has not solved the conflicts between the LG and the Council of Ministers of the Government of Delhi. On the contrary, the Act makes it mandatory for the Delhi government to undertake any action after permission from the LG. However, for the smooth functioning of the asymmetrical federal setup, it is imperative to carry out the NCT’s administration through cooperation, not confrontation.
On fiscal arrangements
Another significant asymmetry is the fiscal arrangements enshrined in the Constitution. When transferring funds from the Centre to States, statutory transfers are made based on the recommendations of the Finance Commission. Also, while the Central government entirely funds specific Central sector development schemes in India, the cost of implementing Centrally sponsored schemes to bring about welfare is co-shared by both the Centre and sub-national units. In the NITI Aayog era, the Centre has considerably reduced the share of its revenue to implement the Centrally sponsored schemes.
Since 2019, many have questioned asymmetrical federalism’s pertinence, ignoring its effectiveness in recognising and promoting self-rule in multiple territories across India. It all began with the dilution of Article 370 in 2019 and the subsequent debates and discussions over the dilution of the omnibus Article 371. These provisions in our Constitution are special arrangements reflective of asymmetrical features.
We must remember that the idea and arrangement of asymmetrical power-sharing can be unsettling if not utilised properly. Such features in our Constitution are neither marginal nor merely provisional. These features touch upon a considerably large number of States. And without these features and provisions, it would not have been possible to undermine the secessionist tendencies of a highly diverse society. Asymmetrical federalism will continue to have its relevance in the future because to pave the way for cooperative federalism we must be able to accommodate various groups and provide them with a share in the governance of the country at the same time.
Rekha Saxena is Professor at the Department of Political Science, University of Delhi, Honorary Vice-Chairperson, Centre for Multilevel Federalism, New Delhi, and Honorary Senior Adviser, Forum of Federations, Ottawa