Asymmetric Federalism

Asymmetry elsewhere

Canada. Quebec's civil law system is preserved by section 92(13) of the Constitution Act 1867, property and civil rights in the province, and section 94 permits uniformity of the laws of property and civil rights in Ontario, Nova Scotia and New Brunswick but not Quebec. Section 133 requires English and French in the Quebec legislature and courts and in the federal Parliament, but not in other provinces. Section 23 of the Charter applies differently to Quebec by section 59.

Switzerland. Half-cantons have one seat in the Council of States rather than two under article 150 and half a cantonal vote in a double majority under article 142(4).

Germany. Very little; the Basic Law treats the Lander alike, and article 29 provides for the reorganisation of federal territory.

United States. None among the States. The District of Columbia and the territories are outside the federation, and the Twenty Third Amendment gives the District electors.

Why India has so much

Three reasons, and an answer should give them.

Accession terms. Several units joined on conditions, and the special provisions record them: Sikkim in 1975 under article 371F, and Jammu and Kashmir under article 370.

Insurgency and identity. Articles 371A and 371G protect customary law and land ownership in Nagaland and Mizoram, and were part of settlements ending armed conflict.

Regional development. Articles 371, 371D and 371J address intra-State inequality rather than State-Union relations.

Those three purposes are quite different, and they are often run together. Only the first two are asymmetry in the federal sense; the third is a direction to a State about its own internal arrangements.

A worked example

A State wishes to legislate to protect customary land tenure against transfer to outsiders.

Nagaland. Article 371A provides that no Act of Parliament in respect of ownership and transfer of land and its resources shall apply unless the Legislative Assembly of Nagaland by resolution so decides, so the State's own law governs and Parliament cannot displace it without the Assembly's consent.

An ordinary State. Land is Entry 18 of List II, so the State may legislate, and Parliament may not, but the State's law is subject to Part III and to article 300A.

Delhi. Article 239AA excepts land from the Assembly's competence, so the Union governs it.

The example shows the three levels of Indian asymmetry in one subject.

The cases

Facts. In re Article 370 of the Constitution concerned the Constitutional Orders of 2019 and the Jammu and Kashmir Reorganisation Act 2019, by which the special status of Jammu and Kashmir was ended and the State was reorganised into two Union territories.

Held, by the Supreme Court. Article 370 was a temporary provision; the President's power under article 370(3) to declare that it shall cease to be operative survived the dissolution of the State's Constituent Assembly; the abrogation was upheld; and the Court directed the restoration of statehood and the holding of elections.

Why it matters here. It is the leading modern Indian authority on asymmetric arrangements and on whether they can be ended unilaterally by the centre.

Facts. Government of NCT of Delhi v. Union of India concerned the division of legislative and executive power between the Government of the National Capital Territory and the Union under article 239AA.

Held, by the Supreme Court. Article 239AA confers on the Delhi Legislative Assembly power over the State and Concurrent Lists except public order, police and land; the Lieutenant Governor is bound by the aid and advice of the Council of Ministers except in the excepted matters and where he refers a difference to the President; and the reference power is not to be used routinely.

Why it matters here. It is the leading authority on the constitutional position of a Union territory with a legislature, which is the most contested Indian asymmetry today.

Distinctions

What beginners get wrong

"Article 370 was permanent." It was in Part XXI, headed temporary, transitional and special provisions, and article 370(3) always contained a power to declare that it should cease to be operative.

"Articles 371A to 371J give States extra legislative powers." Some do, notably articles 371A and 371G, which prevent the application of Parliamentary law on named subjects without the Assembly's consent. Others, such as articles 371 and 371J, direct a State's own internal arrangements.

"Goa's provision is article 371I." It is printed 371-I with a hyphen, and a search without it finds nothing.

Limits and criticism

Asymmetry is criticised as inequality between citizens, since a person's rights differ by State, and defended as the recognition that units differ.

Asymmetric arrangements are unstable if the centre can end them unilaterally, which is the constitutional significance of the 2019 events and of the decision upholding them.

Union territory arrangements produce continuous friction, because two governments occupy one territory with an undefined boundary, which is why article 239AA has produced repeated litigation.

Quick revision

1. Union territories: articles 239, 239A, 239AA, 239AB, 239B, 240 and 241.
2. Delhi: article 239AA excepts public order, police and land.
3. Article 370: temporary provision, operation ended in 2019 and upheld in In re Article 370 of the Constitution.
4. Articles 371 to 371J: eleven States, three different purposes.
5. Articles 371A and 371G: no Act of Parliament on named subjects applies unless the Assembly so decides.
6. Article 371-I is printed with a hyphen; Goa's Assembly must have not less than thirty members.
7. Canada's asymmetry: Quebec's civil law under section 92(13), section 94, and section 133 on languages.

Test yourself

1. What is asymmetric federalism, and why does India have so much of it? It is an arrangement in which the units do not all hold the same powers. India has three distinct sources: terms of accession recorded in the Constitution, as with articles 370 and 371F; settlements protecting customary law and land in Nagaland and Mizoram under articles 371A and 371G; and directions about intra-State development in articles 371, 371D and 371J. Only the first two are asymmetry in the federal sense.

2. Explain articles 371A and 371G. They provide that no Act of Parliament in respect of named subjects shall apply to Nagaland or Mizoram unless the Legislative Assembly of the State by resolution so decides. The subjects are the religious or social practices of the Nagas or Mizos, their customary law and procedure, the administration of civil and criminal justice involving decisions according to that customary law, and ownership and transfer of land and its resources.

3. What is the constitutional position of Delhi? Article 239AA gives the National Capital Territory a Legislative Assembly with power over the State List and the Concurrent List except public order, police and land, and a Council of Ministers to aid and advise the Lieutenant Governor. Government of NCT of Delhi v. Union of India holds that the Lieutenant Governor is bound by that advice except in the excepted matters and where he refers a difference to the President, and that the reference power is not to be used routinely.

4. Is asymmetry consistent with federalism? Yes, and the argument is that federalism exists precisely because units differ, so treating them identically may itself be unequal. The objection is that it produces different rights for citizens according to where they live and creates a hierarchy of units. The practical question is whether an asymmetric arrangement can be ended unilaterally by the centre, which is what the 2019 events in Jammu and Kashmir raised and what the Supreme Court answered in In re Article 370 of the Constitution.