Why is it in the News?

On December 12, 2023, a unanimous decision by a 5:0 majority of Supreme Court judges clarified that Article 370 of the Indian Constitution is a facet of asymmetric federalism and does not imply internal sovereignty.

What is Asymmetric Federalism?

• Asymmetric federalism involves the uneven distribution of powers and relationships within the political, administrative, and fiscal domains among the federal units comprising a federation.
• This asymmetry can manifest in both vertical (between the center and states) and horizontal (among the states) dimensions.
• It can arise not only from constitutional provisions but also from the practical implementation of administrative, political, and fiscal systems within a federation.
• India's founding fathers acknowledged the importance of a diverse governance model that respects the unique cultural differences across the nation, allowing for a blend of self-rule within the framework of shared governance.

Why is it stated that India practices Asymmetric Federalism?

• India's administrative structure comprises the Centre and the States as primary forms of administrative units.
  • However, additional forms exist, each designed to cater to specific local, historical, and geographical contexts.
• In addition to the Centre and the States, India features Union Territories with a legislature, as well as Union Territories without a legislature.
  • Notably, territories like Puducherry and Delhi possess legislatures, while others under the Centre lack legislatures or a ministerial council for advisory purposes.
• Even among territories with legislatures, distinctions arise.
  • Puducherry holds legislative powers over matters in the State List or Concurrent List applicable to the Union Territory.
  • In contrast, Delhi, with a similar scope, has exceptions in three areas: police, land, and public order are beyond its jurisdiction.
    • However, Parliament retains overriding powers over laws enacted by the Assembly in Union Territories.
• Much like the non-identical powers of the Centre and the States, variations exist in the relationships between certain States and other constituent units of the Indian Union and the Centre.
• This introduces a noticeable asymmetry in the functioning of India's federal system.

What is Article 370 of the Indian Constitution?

• The most prominent illustration of asymmetry in Centre-State relations was evident in the special status enjoyed by Jammu and Kashmir until August 6, 2019, when the President announced the cessation of its special privileges.
• Under Article 370, the State had the authority to maintain its separate Constitution, establish its criteria for 'permanent residents,' restrict outsiders from owning property, and have the prerogative to not automatically apply any Indian law to its territory.
  • Specific approval by its Assembly was required for the operation of Indian laws.
• Jammu and Kashmir had the autonomy to formulate its Penal and Criminal Procedure Codes.
• The President had the authority to notify, at intervals, the constitutional provisions that could be extended to the State, with or without modifications.

Is Jammu and Kashmir the only state to enjoy special powers under the constitution?

• No, its not the only Indian state to enjoy such special provisions — 11 other states still continue to do as per the Indian Constitution.
• The Part XXI of the Constitution consists of articles on Temporary, Transitional and Special Provisions of some states, other than Jammu and Kashmir.
  • In the Part, apart from Article 370, there are also Articles 371, 371A, 371B, 371C, 371D, 371E, 371F, 371G, 371H, 371I, and 371J – which provide special provisions to Maharashtra, Gujarat, Andhra Pradesh, Karnataka, Goa and six of the seven sister states of North East India — Nagaland, Assam, Manipur, Sikkim, Mizoram, Arunachal Pradesh.
• However, Article 371I and Article 371E which deal with Goa and Andhra Pradesh respectively, do not offer any such special provisions to the state – and stand out from the rest.
• Articles 370 and 371 have been the part of Indian Constitution since it came into force on January 26, 1950.
  • But Articles 371 A- I was incorporated later through various amendments under Article 368, which is described as the “power of Parliament to amend the Constitution and procedure therefor”.

The states and the Articles under which they enjoy special provisions:

• Maharashtra and Gujarat (Article 371): The Governor of Maharastra has a special responsibility to establish “separate development boards” for regions like Vidarbha and  Marathwada, in Maharashtra; while Gujarat has the power to do so in Saurashtra and Kutch.
  • This was done to ensure “equitable allocation of funds for developmental expenditure over the said areas”, and “equitable arrangement providing adequate facilities for technical education and vocational training, and adequate employment opportunities” under the state government.
• Nagaland (Article 371A): In Nagaland, the Indian Parliament cannot legislate in matters of Naga religion or social practices, Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law, and ownership and transfer of land and its resources, without the state Legislative Assembly’s nod.
  • These provisions were included in the Constitution after a 16-point agreement between the Centre and the Naga People’s Convention in 1960, which led to the creation of Nagaland in 1963.
  • It also gives the Governor a special responsibility for law and order situations in Nagaland, especially in case of internal disturbances occurring in the Naga Hills-Tuensang Area.
  • Also, there is a provision for a 35-member Regional Council for Tuensang district, which elects the Tuensang members in the Assembly.
  • A member from the Tuensang district is Minister for Tuensang Affairs.
• Assam (Article 371B): Quite like Nagaland, The President of India may provide for the constitution and functions of a committee of the state Legislative Assembly consisting of members elected from the tribal areas of the state.
• Manipur (Article 371C): Similar to Assam here as well, the President may provide for the constitution and functions of a committee of elected members from the Hill areas of the state in the Assembly for the modifications to be made in the rules of business of the Government.
  • It also entrusts “special responsibility” to the Governor to ensure its proper functioning, and report to the President every year regarding the administration of the Hill Areas of the State.
• Andhra Pradesh (Article 371D, 371E): The President of India must ensure “equitable opportunities and facilities for the people” or ensure reservation in the matter of government jobs, education and other schemes by the state government.
  • The President also has power for direct recruitment to posts in any local cadre of the state government, and admissions in any university or educational institution in the state.
  • He is also entrusted for setting up an administrative tribunal outside the jurisdiction of the High Court to deal with issues of appointment, allotment or promotion in state civil services.
  • Article 371E allows the establishment of a Central University in Andhra Pradesh by a law of Parliament.
• Sikkim (Article 371F): The Article gives Sikkim to hold a Legislative Assembly of minimum 30 members, notwithstanding anything this the Constitution.
  • These members shall elect the representative of Sikkim in the Indian Parliament.
  • To protect the rights and interests of various sections of the population of Sikkim, Parliament may provide for the number of seats in the Assembly, which may be filled only by candidates from those sections.
  • The Governor of the state also has “special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population”.
  • It also states that any existing laws in Sikkim during its formation shall continue, and any adaptation or modification shall not be questioned in any court.
• Mizoram (Article 371G): According to the Article, the Legislative Assembly of AP should not contain less than 40 members.
  • Apart from that, similar to Nagaland in Mizoram as well the Parliament can not make laws on “religious or social practices of the Mizos, Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Mizo customary law, ownership and transfer of land” unless the state Assembly decides to do so.
• Arunachal Pradesh (Article 371H): This article vests the Governor with special responsibility for law and order of the state, but he will have to consult the Council of Ministers in the state before exercising his individual judgment.
  • However, if a matter arises where the Governor is required to act in the exercise of his individual judgment, then it should be considered as final and “shall not be called in question.”
• Karnataka (Article 371J): Article 371J allows the establishment of a separate development board for the backward districts in the Hyderabad-Karnataka region — similar to the provisions made for Maharashtra and Gujarat.
  • This board will have to report to the state Assembly every year.
  • It also ensures reservation for people of this region, in government jobs and education.