Asymmetric federalism

Topic: Special Provisions, Scheduled and Tribal Areas · NCERT: Class 10, Ch 2 "Federalism"; Class 11, Ch 7 "Federalism"; Class 11, Ch 10 "The Philosophy of the Constitution"

Meaning

Asymmetric federalism is a federal arrangement in which some units get a special constitutional status or special powers that other units do not have. The reasons are their history, culture or geography. In India this includes the Article 371 series, the Fifth and Sixth Schedules, Article 239AA for Delhi, and Article 370 for Jammu and Kashmir until 2019. The USA is different: all its states have the same powers.

It matters because India is a "holding-together" federation. It uses special terms to keep very different regions inside one Union. The Supreme Court has said that asymmetry is part of the Indian federal scheme [2].

Explanation

How it works

• Federalism means power is divided between a central government and regional governments. The Constitution protects this division.
• In a symmetrical federation, every unit has the same powers.

• The USA is the standard example. All 50 states have the same constitutional position and 2 Senate seats each.

• In an asymmetric federation, some units are given different rights. The Supreme Court described asymmetric federalism as giving different rights to some federal units [2].

• Class 11 NCERT ("Federalism") calls this India's "most extra-ordinary feature": "many States get a differential treatment."

Two types of asymmetry

• De jure asymmetry ("by law"): the difference is written into the Constitution or a law.

• Examples: Art. 371A for Nagaland, and the Sixth Schedule.

• De facto asymmetry ("in fact"): the difference comes from size, population or resources, not from law.

• Example: Uttar Pradesh and Sikkim have the same legal powers but are very unequal in practice.

• Only de jure asymmetry is "special status" in the constitutional sense.

Why India has it: four causes

• Holding-together, not coming-together.
• A coming-together federation forms when independent states join, as in the USA.
• A holding-together federation forms when a large country shares power with its parts so that it stays united, as India did.

• So India gives special terms to diverse regions to keep them in the Union.

• History: the terms on which a region joined India, and peace accords with armed groups.

• J&K's Instrument of Accession (1947); Sikkim joining in 1975 (Art. 371F); the Mizo Accord in 1986 (Art. 371G).

• Identity: protecting customary law (traditional community rules), land and language.

• Art. 371A (Nagaland) and Art. 371G (Mizoram).

• Geography and security: border and hill areas.

• The Inner Line Permit, and the Governor's special responsibility for law and order in Arunachal Pradesh under Art. 371H.

• Uneven development: help for backward regions inside a state.

• Development boards under Art. 371 (Vidarbha, Marathwada) and Art. 371J (Hyderabad-Karnataka).

Limits

• Asymmetry is allowed, but a special status can be changed through the constitutional process. The 2023 Article 370 judgment shows this [2].
• NCERT admits that these provisions "have not been able to stem alienation and the insurgency" in parts of the North-East.
• Demonstration effect: when one group gets special status, other groups ask for the same.

In the Constitution and practice

• Art. 370 (until 2019): a "temporary provision" in Part XXI.
• J&K had its own constitution.

• Most Union laws applied there only if the state agreed.

• Art. 371 to 371J (Part XXI): special provisions for 12 states. These include special powers for the Governor, development boards, and protection of customary law and land [5][7].

• Art. 371 (7th Amendment, 1956), Maharashtra and Gujarat: the President can give the Governor a special responsibility for separate development boards and a fair share of funds, technical education and jobs for backward regions [5].
• Art. 371A (13th Amendment, 1962), Nagaland: no Act of Parliament applies on four matters unless the Nagaland Legislative Assembly passes a resolution accepting it. The four matters are Naga religious or social practices, Naga customary law and procedure, civil and criminal justice under Naga customary law, and ownership and transfer of land and its resources [6].

• Art. 371J (98th Amendment, 2012), Karnataka: a development board for the Hyderabad-Karnataka region, plus reserved seats in education and state jobs for local people. It is the newest clause in the series [8].

• Art. 244A (22nd Amendment, 1969): Parliament can create an "autonomous state" inside Assam for certain tribal areas.

• Fifth Schedule (Art. 244(1)): Scheduled Areas in many states.
• The Governor can change or block laws there.

• A Tribes Advisory Council advises the government.

• Sixth Schedule (Art. 244(2)): Autonomous District Councils in Assam, Meghalaya, Tripura and Mizoram. These councils can make laws and run courts.

• Art. 239AA (69th Amendment, 1991): Delhi has an elected assembly, but police, public order and land stay with the Centre.
• Art. 80 and the Fourth Schedule: Rajya Sabha seats depend on population, so states are not equal in the Rajya Sabha.
• Inner Line Permit (ILP): a pass that other Indian citizens need to enter or stay in a protected area. Its aim is to stop outsiders from settling there.
• Its legal base is the Bengal Eastern Frontier Regulation (BEFR), 1873 [9].
• In 2019 the President extended it to Manipur under Art. 372(2), and the Union Cabinet approved this after the fact (ex-post facto approval) [9].
• It now covers Arunachal Pradesh, Manipur, Mizoram and notified areas of Nagaland [10].

• The Citizenship (Amendment) Act, 2019 does not apply to Inner Line areas or Sixth Schedule areas [10].

• Special category status (fiscal asymmetry): this is not in the Constitution.

• It began in 1969 with Assam, Nagaland and J&K, and later grew to 11 states [11].
• It came from a National Development Council (NDC) resolution, not from a Finance Commission [12].
• These states got central help as 90% grants and 10% loans, against 30:70 for other states [11].

• The 14th Finance Commission raised the states' share of central taxes from 32% to 42% and did not treat special category states differently [11].

• Practice: Mizoram. The Mizo National Front fought an armed struggle from 1966. The Mizo Accord was signed in 1986, Mizoram became a state in 1987 and got Art. 371G. Class 12 NCERT treats it as proof that negotiation works better than suppression. NCERT also says the Sixth Schedule "proved crucial" in the North-East.

• Landmark case: In re: Article 370 of the Constitution (five-judge Bench, 11 December 2023) [2]
• On 5–6 August 2019, Parliament approved a resolution that made Art. 370 inoperative. The J&K Reorganisation Act, 2019 split the state into the UTs of J&K and Ladakh [4].
• The Court held that Art. 370 was a feature of asymmetric federalism, not sovereignty. J&K kept no internal sovereignty after it joined India [2].
• The Court upheld the abrogation [2][3] and ordered J&K assembly elections by 30 September 2024 [2].

Don't confuse with

• Symmetrical federation (USA): every unit has equal powers and equal Senate seats. India's Rajya Sabha seats depend on population (Fourth Schedule).
• De facto asymmetry: this is inequality of size or resources, not of law. UP and Sikkim have the same legal powers. Special status comes only from de jure asymmetry.
• Special category status: this is fiscal help created by an executive decision of the NDC. It is not a constitutional status like Art. 371 or the Sixth Schedule [12].
• Fifth Schedule vs Sixth Schedule: the Fifth Schedule (Art. 244(1)) works through the Governor and a Tribes Advisory Council. The Sixth Schedule (Art. 244(2)) creates elected district councils with law-making powers, and only in Assam, Meghalaya, Tripura and Mizoram.

Prelims Hooks

• Art. 371J (Hyderabad-Karnataka) was inserted by the 98th Amendment, 2012. It is the newest Art. 371 clause [8].
• Art. 371A: an Act of Parliament on Naga customary law, religious practice or land applies in Nagaland only if the state assembly passes a resolution [6].
• Trap: Himachal Pradesh has no Art. 371 clause [7]. Its tribal areas (Kinnaur, Lahaul-Spiti, Pangi, Bharmour) are under the Fifth Schedule, not the Sixth.
• ILP: based on the BEFR 1873. It was extended to Manipur in 2019 by a Presidential order under Art. 372(2) [9].
• Special category status began in 1969 from an NDC resolution. It is not in the Constitution and not a Finance Commission creation [11][12].
• In re Article 370 (2023): Art. 370 was "asymmetric federalism, not sovereignty". The abrogation was upheld [2].

Mains Points

• Asymmetry as a tool of a holding-together federation
• It helped bring Sikkim (Art. 371F), Mizoram (Art. 371G) and the Naga areas (Art. 371A) into India peacefully.

• Class 12 NCERT: accommodation through negotiation works better than force. The Supreme Court in 2023 accepted asymmetry as part of Indian federalism [2].

• Unity or division? The limits of asymmetry

• Critics say special status feeds a "we are different" feeling and blocks investment. The ILP and land curbs can also clash with free movement and the right to settle anywhere in India (Art. 19(1)(d) and (e)).

• It has not ended insurgency: Nagaland has had Art. 371A since 1962, yet peace talks go on. There is also a demonstration effect: Ladakh wants Sixth Schedule status and statehood, and there are demands from the Kuki-Zo, for Gorkhaland and for "Greater Tipraland".

• Reform direction

• Make asymmetry need-based and reviewable. Since the 14th Finance Commission, fiscal help has shifted from status-based to formula-based [11], but hill states say the formula ignores their higher costs.
• Give autonomous councils real powers and funds, and consult local communities before any status is changed. The J&K abrogation, done while the state was under President's rule (Union rule over a state under Article 356), is still debated on consent and federal grounds.

Read more

• Asymmetric federalism: why some units are treated differently