asymmetric federalism india | Assignments Law

INTRODUCTION

Asymmetric Federalism basically means that the units in a federation have unequal powers

and relationships in the spheres like political, administrative and fiscal arrangements. It can

be present in both horizontal and vertical basis. Horizontal is the arrangement among the

states and Vertical is the arrangement between Center and States.

The focus of this paper is to understand the unequal arrangements and certain special

treatments provided to units within our federation causing asymmetric arrangements in our

nation. Our federalism is the result of a long history of bargaining and accommodation. Our

country needed to provide certain powers and had to have this arrangement because of the

interests and identities of diverse groups and societies resulting not only in coming together

federalism but also holding together federalism.

EVOLUTION OF ASYMMETRIC FEDERALISM IN INDIA

HISTORICAL BACKGROUND

The historical and political factors are the cause for the distribution of power between the

Centre and states on one hand and the treatment of different states in the Indian Constitution

on the other hand. The Cabinet Mission which was sent by the British Government in 1946

had no intention to divide our undivided India into two different nations instead it suggested

that our country should be governed by a constitution which is federal in nature where the

Central would be dealing with foreign affairs, defense and communication and the remaining

matters by the two groups of provinces – one being Hindu and the other being Muslim. But

the Muslim league was stubborn to have a separate nation which caused the separation of

India and Pakistan where the Muslim majority regions of the North-west part of the

subcontinent and the Eastern part of Bengal was the part of the new nation Pakistan. Hence

the Founding Fathers of our Constitution took the decision of providing our country with a

strong Central Government that would hold our diverse economic, linguistic and cultural

factors together and that would avoid the possibility of the situation wherein different groups

or parts are to be formed on the basis of the factors mentioned. At the time, Centralisation

was required to unify our country that comprised of the regions directly ruled by the British

Government, 216 princely states and territories.

ASYMMETRIC STRUCTURE AT THE TIME OF INEPENDENCE

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INTRODUCTION

Asymmetric Federalism basically means that the units in a federation have unequal powers and relationships in the spheres like political, administrative and fiscal arrangements. It can be present in both horizontal and vertical basis. Horizontal is the arrangement among the states and Vertical is the arrangement between Center and States. The focus of this paper is to understand the unequal arrangements and certain special treatments provided to units within our federation causing asymmetric arrangements in our nation. Our federalism is the result of a long history of bargaining and accommodation. Our country needed to provide certain powers and had to have this arrangement because of the interests and identities of diverse groups and societies resulting not only in coming together federalism but also holding together federalism. EVOLUTION OF ASYMMETRIC FEDERALISM IN INDIA HISTORICAL BACKGROUND The historical and political factors are the cause for the distribution of power between the Centre and states on one hand and the treatment of different states in the Indian Constitution on the other hand. The Cabinet Mission which was sent by the British Government in 1946 had no intention to divide our undivided India into two different nations instead it suggested that our country should be governed by a constitution which is federal in nature where the Central would be dealing with foreign affairs, defense and communication and the remaining matters by the two groups of provinces – one being Hindu and the other being Muslim. But the Muslim league was stubborn to have a separate nation which caused the separation of India and Pakistan where the Muslim majority regions of the North-west part of the subcontinent and the Eastern part of Bengal was the part of the new nation Pakistan. Hence the Founding Fathers of our Constitution took the decision of providing our country with a strong Central Government that would hold our diverse economic, linguistic and cultural factors together and that would avoid the possibility of the situation wherein different groups or parts are to be formed on the basis of the factors mentioned. At the time, Centralisation was required to unify our country that comprised of the regions directly ruled by the British Government, 216 princely states and territories. ASYMMETRIC STRUCTURE AT THE TIME OF INEPENDENCE

The Union of India began with the Asymmetric structure as it was formed since the time of the British Government’s way of unifying our country. The territories under British rule were easily integrated and the integration of different principalities was acquired by the signed treaties of accession of Individual rulers. Also the Constitution adopted in 1951 divided all the states into four categories. Part A – provinces which were directly under the control of the British; Part B – The treaty signed Princely states like Hyderabad, Mysore, Jammu & Kashmir and other 5 newly joined princely states, herein special powers of accession were given to Jammu & Kashmir; Part C – Remaining Princely States that acceded to Union other than by treaty; Part D – The regions not covered in the above three categories and also the territories under the rule of other foreign powers namely French and Portuguese gaining independence. Basically, this arrangement was in way recognition of different set of institutions and administrative standards of our country which over these many years have been unified in various ways. While the division of stated and their unification took place, mostly the Princely states had to surrender their sovereignty to our new nation India in exchange for a revenue stream which was guaranteed by our government and these asymmetries regarding princely states have disappeared now from Indian Federalism. PROCESS OF INTEGRATING THE NORTH-EASTERN HILL STATES The main principle of language was the base reason to create new boundaries during the process of administrative reorganization. Basically, for further divisions within these boundaries it was not based on religions, caste, ethnic or tribal identities but the north-eastern part of India is an exception. There is a difference of ethnicity in that part from the rest of India, and various other divisions which are based on language, culture and traditions. Arunachal Pradesh, Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and Sikkim are the states of this part. Most of these were Union Territories initially. This upgrade gave these states a political status similar to other larger states. Even the Constitution of India by Article 371 provides special powers to north-eastern states which were introduced through amendments. These provisions reflect the respect for their customary laws, social practices, restrictions on the ownership and transfer of land, restriction on migrants to the state. The changes in these provisions if required are totally in control of the state legislatures. Thus, for the concern of the social inequalities in the initial stages, our Constitution has provided us with various provisions that protect the rights of our diverse community.

In other words, J&K has not only merged its territory into the Indian Union, but it has also explicitly preserved its territorial integrity and identity. The Accession Instrument was joined by an archive that was confirmed by the Governor- General and expressed the following: ‘As soon as Law and Order have been restored in India and her soil is cleared of the invader, the question of the state’s accession would be decided by a reference to the people.’ The Government of India guaranteed that Article 370 was a transitory arrangement, until the desire of the individuals could be observed and secured. This proposes the severance was just transitory and may be switched on sanction. India spoke to the United Nations and concluded in a non-binding United Nations Security Council Resolution 47, which called for harmony in the locale and a plebiscite to choose the subject of Kashmir. The negotiations among Kashmir and India were in progress regarding Article 370 and the Constitution, with this Article, came into power on 26th January 1950. According to the Constituent Assembly, Article 370 couldn't proceed to post the State Constituent Assembly's decision on the Constitution and the government jurisdiction it envisaged. The Delhi Agreement was signed between Sheik Abdullah and Jawaharlal Nehru in 1952 and it endeavoured to choose the degree and broadness of the connection between the Center and the state until a plebiscite could be held. Sheikh Abdullah was expelled from control in 1953 and detained in a way that is presently viewed as unlawful. Thusly, the post of Sadr-I-Riyasat (State President, as was consulted in the Agreement) was cancelled. From 1953 to 1975 the Chief Ministers of the state were nominated for Delhi, given the royal power as per Governor B.K. Nehru, by methods for fixed elections. Sheikh Abdullah marked an agreement with Indira Gandhi in 1975 and accepted the post of the Chief Minister. WHETHER J&K AN EXAMPLE OF ASYMMETRIC ARRANGEMENT OR NOT? The answer to this question is unsettling in a way because some researchers says that the Article 370 was evidently conceding an asymmetrical autonomy in it whereas some researchers says that it was not a representation of asymmetric federalism as mentioned above that it was just a transitory arrangement and it did not propose to protect any minority personnel living in J&K, it was only for filling the gap until certain political situations could be maintained. Overtime, this arrangement became a semi-permanent kind of compromise and it was not an easy one. Although the provision was meant to be temporary in nature, Article 370 still guaranteed an asymmetrical arrangement; by virtue of the special powers, the provision granted the state. Its time-barred nature would not take away the decentralized

governance the provision attempted to secure. So, whatever the intentions were with regard to the time span within which Article 370 was to operate, the drafters had the intention for Jammu and Kashmir to have been qualified as an asymmetric autonomy as per the terms of the Instrument of Accession. INDIAN CONSTITUION’S PROVISIONS THAT REFELCTS CERTAIN FEATURES OF ASYMMETRICAL FEDERALISM An arrangement of a political organisation which unites separate politics into a comprehensive structure while maintaining was a day for the name egalitarian relations between individuals, groups or governments is known as Federalism. Indian Constitution’s framers decided to develop a unique federation by establishing the supremacy of the Union while assuring that the States continue to retain autonomy in certain fields. Asymmetric arrangements were never a pristine element in the making of the Constitution, but the likes of such arrangements subsequently had arisen due to two reasons: 1) as a response to the demands rose by certain mobilised nationalist groups and 2) when certain privileges were guaranteed to new entities at the time of joining the federation. In the theoretical literature which addresses asymmetrical federalism, a distinction is made between de facto and de jure devices. The de facto federalism, they claim, is a feature common to all federations which includes inter alia, differences in culture, wealth and representation in the wider federation. The de jure federalism, however, is a product created through the conscious efforts of a Constitution to provide recognition or protection for certain groups. De jure asymmetry in Indian policies are claimed to be of two forms: (i) the policies enshrined in the Fifth and Sixth Schedules which permits a greater degree of autonomy for individual States, and (ii) the special provisions that mandate positive discrimination in certain States to alleviate inter and intra-state inequalities. The evolution of such provisions can be traced back to the transitional constitutional structure created for the conflicted state of Jammu and Kashmir back in 1950’s, to the subsequent differential agreements formed for the Nagas and Mizos enshrined in Article 371, to the asymmetrical arrangements formed in 1970’s for governing the accession of Sikkim and the special provisions for other States incorporated under Articles 371 to 371J. Additionally, in support of this understanding, the courts in India have clarified that Indian policies permit differential treatment of regions and groups under a single legal order. Further, the Constitutional Bench while interpreting Article

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INTRODUCTION