CHAPTER - I
Asymmetrical Federalism - Exploring the context and theoretical framework
1. Introduction
This chapter engages with the theory of asymmetrical federalism contextualised to the subject of
study. The first section explores the varied debates and discussions on the asymmetrical
framework and discusses the different types of asymmetry that are experienced in different
regions of the world. The second section assesses the theoretical debates on asymmetrical
federalism and its functionalities in the context of multination and multiethnic countries. The last
section examines the Indian conditions and inquires into the federal structure from the
positionality of asymmetrical federalism contextualised to the situation of the universe of the
study.
In a multiethnic country like India the issue of accommodating diverse realities around different
communities and regions has been engaging framers of national policy since the beginning of the
Indian state. After India became independent in 1947, a constituent assembly was constituted to
draft a new constitution. The new constitution came into effect on January 26, 1950 and through
it the system of federation in India got institutionalised. India is the seventh largest country in the
world in terms of area. According to Census of India 2011, thirty languages are spoken by more
than a million native speakers and there are 1,652 languages and dialects spoken with more than
2000 ethnic groups in India. India’s population comprises of 15 percent Dalits, known as
scheduled castes and 7.5 percent of 461 indigenous groups or Schedule Tribe. The country
represents 17.5 percent of the world population of 1.21 billion people. The States Reorganization
Act of 1956 was formed on an ethnic- linguistic basis which has created 29 states and 7 union
territories (Pathak, 2009).
While it is said that a multi-ethnic societies, in terms of constitutional arrangements, need for
autonomy points to some form of federalism in which there is duality of sovereignty and powers
of both government levels, are coordinate, critics have sometimes suggested that federal
institutions, involving division of power, legalism, rigidities, and technicalities, simply create
clumsy obstruction in the affairs of the state. Some say that the result in shared fields often seems
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to be immobility and indecisiveness; substantial policy change often seems to require a high
degree of consensus or a massive exertion of political will. Citizens who seek responses and
decisions from government face complex procedures and must put up with duplication,
uncertainties and delays of divided jurisdiction.
Federalism to such critics seems to be the enemy of policy that is planned, comprehensive,
coherent, uniform and content. In answer to such criticism Elazer (1991) says that this view is
based on a widely accepted but erroneous understanding of what constitutes efficiency in
government. The understanding is based on hierarchical thinking about governmental
organisation. The hierarchies that appear to be so neat on paper do not work in practice. Elazer,
further point out that if one begins as a monist, assuming the desirability and feasibility for
everyone, then federalism is indeed inefficient and even wrong because it enables the
perpetuation end even the entrenchment of differences. If one begins as a plurist, seeing the
world as a heterogeneous place and properly so, then one must make a different evaluation of
federalism as a means to protect and entrench liberty. Thus, monistic, Jacobian and Marxian
views have constantly rejected federalism as wrong in principle even if they have had to
compromise with reality and accept the temporary existence of pluralism. Federalism views, by
contrast, embrace pluralism and seek means to protect it – one might say efficient means to do so
– of which constitution of self-rule and shared rule is primary.
According Elazar (1987) describes federalism as a “contractual non-centralisation, the structural
dispersion of power among centres whose legitimate authority is constitutionally guaranteed”. It
is designed to link the constituent units more closely within a common general government
whose constitution is the supreme law of the land and that maintains direct contact with its
individual citizens.
Riker (1964), who was among the first scholars of modern federalism and who called into
question the excessive legalism and constitutional emphasis, however, suggests that federalism is
a juristic concept of sorts and that fact (should be) retained in our definition by emphasizing the
exercise of two kinds of governments and their separate ability to make some decisions
independently of each other. The understanding of federalism, therefore, must not be limited
either exclusively to questions of institutional structures or merely to patter social factors, but
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rather to the interrelations of the two. The suggestion here is for the political approach that places
the fundamental dynamics of federalism in citizens’ collective identities, values, and perceptions
of their interests. In this context Elazer (1987) suggests that federalism is a rich and complex
thing, a matter of formal constitutional divisions, appropriate institutions and patterns of political
culture. Moreover, federal democracy offers a complete and comprehensive theory of democracy
which stands in sharp contrast to the theories of democracy regnant in Europe until now-Jacobian
democracy and parliamentary democracy of the West minister model-not to speak of that
monstrous development sometimes referred to as totalitarian democracy where outside of the
privileged elites, there is the “democracy” of the equality of repression (ibid). Federal democracy
addresses the great questions of political sovereignty and the distribution of powers
(competences), the relationship between power and law or right, and the great issues of
centralisation and decentralisation. It does so by vesting political sovereignty in the people who
constitute the body politic rather than in states, and requiring them to constitutionally allocate
competences or powers among the government of their creation. They must do so in a way that
encourages multiple centres of power and in a manner which provides for both centralisation and
decentralisation as needed, but always within a non-centralised framework whereby all exercise
of powers is governed by law and related to the rights of the constituents.
The above discussion shows that even though there is a spectrum of definitions and
characteristics of federalism, it is agreed by all scholars that federalism organises political power
around the principle of divided jurisdiction. In this way the concurrent demands for union and for
territorial diversity within a society is achieved through compromise. In this way there is a single
political system where the level of government in region and general is legally or politically
subordinate to the other.
From the concept of federalism as involving two co-ordinate levels of sovereignty within a single
country two theories of “dual federalism” and “co-operative federalism” have been developed.
Those who have elaborated the theory of “dual federalism” have argued that in a truly federal
system the central and regional governments must have their own demarcated spheres of activity
in which each operate independently of the other, and that the maintenance of functional
separation between the two levels of government is the key to the maintenance of a genuine
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federal system. On the other hand, those who have developed the theory of “co-operative
federalism” have stressed the necessity in any federal system of cooperation and interaction
between central and regional governments. According to this view the key to the successful
maintenance of a federal system lies in mutual interdependence of the two levels of government,
thus ensuring their collaboration as partners without rendering either level subordinate (Narang,
1995). However, Watts (1966) points out that in theory the difference between the two versions
of the federal concept is chiefly one of emphasis: “dual federalism” views the two sets of
government primarily as equal rivals. “Co-operative federalism” views them as equal partners.
What lies at the root of both theories is the premise that in a federation neither level of
government is subordinate to the other. Thus, federalism means the distribution of powers and
responsibilities to appropriate political levels and types of institutions, both up and down the
scale, so as to combine representation and authority, union and diversity, organisation and
freedom. In the process of nation and state building, the idea and concept of federalism evolved
as an important aspect of polity and governance. It is primarily a concept and structure about
institutionalised political cooperation and collective co-existence. Federalism is a grand design of
'living together' in the matrix arrangement that is conceptually termed as 'self-rule and shared
rule'.
In the constitutional debate of 1948 it was argued by the then Prime Minister of India that India
is a vast country of great distances and huge population. However much, the Centre may be
anxious to accord uniform treatment to the various parts of the country, still, in the very nature of
things, there will be draw-backs and shortcomings. This will naturally lead to discontent and
conflict. It is for this reason that many political thinkers have been of the view that a federal type
of Government Is more suitable for a country like India which is characterised by socioeconomic and political diversity. Further he also said that Federalism is a conservative force in
politics. It is suitable for keeping a check on the economic growth and persisting inequalities.
Elazer (1987) opined that the federal constitution recognises the special cultural rights of the
people, especially the minorities. In this sense, it is very close to the theory of multiculturalism,
yet different because the niceties of federalism lie in its fundamental stress on institutionalisation
of diversities and facilitating socio-political cooperation between two sets of identities through
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various structural mechanisms of 'shared rule'. As a state-building theory, federalism has three
essential components: (i) formation of states and territorialisation of federal-local administration
in such a manner as to promote closer contact between people and government; (ii) distribution
of federal powers on a non-centralised basis; and (iii) creation of the institutions of shared rule
(ibid). The first component essentially means creation of the institutions of 'self rule'. The
institution of self-rule at the macro level means creation of states, and at micro level, it refers to
the institution of local self-governance. States or regional units of administration are usually
formed on the basis of relative continuity or discontinuity of spatial interaction pattern between
people, culture and territory. This, in other words, means formation of states on the principle of
"homogeneity with viability". The state system may include several substate arrangements like
regional councils or district councils to cater to the specific cultural and administrative
requirements of the people living in geo-ethnic enclaves.
The second component refers to the division of federal powers and functions on a relatively
autonomous basis, where each unit has sufficient legislative competence, executive authority and
financial resources to perform its function in the allotted domain efficiently and effectively. In
recent years, the notion of competence division and distribution has come into being.
Competence refers to the functionally elaborated and constitutionally protected capacity of the
various units of federal-regional administration. As a devolutionary theory of administration and
governance, federalism and federal system may follow either one or combination of the
following arrangements like non-centralisation, decentralisation and de-concentration. Noncentralisation refers to a non-hierarchical allocation of competence. Decentralisation means
conditional-hierarchical distribution of competence from one federal structure to other
subordinate authority and structures and de-concentration means a partial 'off-loading' of, usually
executive authority and functions, from one authority to subordinate authority. An essential
attribute of federalism is the creation of a federal political culture in which differences are sorted
out through mutual negotiation, and consensus is built on matters of common concern and
national importance (Elazar 1987). The third component relates to the institutions of shared rule.
This takes out federalism from being only a system of self-governance to collective governance
on matters of translocal importance and mutual concern. Shared rule institutions may take variety
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of institutional shapes like zonal council, ministerial council, inter-state council, and independent
constitutional authorities like boards, commissions, planning and other regulatory bodies.
In regard to the definition of federalism Kymlicka (1998) points that there is no universally
accepted definition of ‘federalism’. He posits federalism to refer to a political system which
includes a constitutionally entrenched division of powers between a central government and two
or more subunits (provinces / states / cantons), defined on a territorial basis, such that each level
of government has sovereign authority over certain issues. This distinguishes federalism from
both (a) administrative decentralisation, where a central government establishes basic policy in
all areas, but then devolves the power to administer these policies to lower levels of government,
typically regional or municipal governments; and (b) confederation, where two or more
sovereign countries agree to co-ordinate economic or military policy, and so each devolves the
power to administer these policies to a supranational body composed of delegates of each
country (ibid).
The term “federalism” has been used in a variety of contexts over time. Indeed, the extent of
terminological and conceptual abuse has obscured its meaning. Like the word “democracy”
federalism tends to mean different things to different people. It has been misunderstood to hinge
upon mental processes-definition and classification. The words federal, federation, federalism,
have etymological roots in the Latin term “foedus”, which according to one Latin dictionary
(http://dictionary.reference.com/browse/federal),
has
at
least
eight
meanings:
alliance,
association, compact, contract, league, treaty, trust, union. Its historical meaning has varied from
actual existential experience, spanning several centuries in many cradles of human civilisation.
Perhaps the oldest meaning of the expression “federal government” appears in its use to refer to
the loose linking together by treaty of sovereign states for specific military or economic purpose.
In this sense the term “federal”, is synonymous with “confedral”. Indeed, etymologically there is
little to distinguish between “federal” and “confederacy” or between “federation” and
“confederation” or “confederacy”. Each of these words implies a covenant, compact, or treaty
among independent states. Examples of federation in this form can be found as far in history as
the confederation of ancient Greece. Other prominent examples were the Swiss confederation
before 1848, the united province of the Netherlands (1579-1795), the United States of America
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before 1787 and the German Empire (1871-1918). This usage is still current in contemporary
Europe, where the various European supra-national agencies designed to secure co-operation
between nations have sometimes been referred to as “federal” (Narang, 1995).
A federal system, according to Elazar (1987), provides a mechanism which “unites separate
politics within an over reaching political system so as to allow each to maintain its fundamental
political integrity.” Federalism haws an important moral purpose. It is about “the preservation of
diversity of culture, of religion, of social institutions, of education policies, and of language
codes.” According to Martin (1990), federalism gives all the amount of responsibility,
advantages of a representative government, while it guards against the mistakes and occasional
effects of personal collisions to which small communities are exposed. Clearly, federalism, in
theory at least, constitutes a delicate balance between the autonomy of constituted territories and
complete integration under a sovereign national government. The duality of state and national
government provides a practical method of meeting truly national problems without the
establishment of an arbitrary central authority. Participation with liberty and equality creates a
certain amount of responsibility, understanding, and mutual accommodation among the
heterogeneous groups of people.
The state mechanism based on principles of compromise and accommodation prepares a
necessary climate for a harmonious working of social and economic forces. Federalism may,
thus, become the most important political structure of solving problems associated with
conflicting demands for unity and diversity by strengthening the capacity of national institution
through a process of accommodation and reconciliation of country’s internal social, economic
and cultural diversity. However, from the years since the end of First World War, particularly
with the processes of decolonisation and emergence of new states since Second World War and
growth of welfare state, there have emerged some significant problems in the theory and practice
of federalism, these are, (i) the use of term “federalism” in a variety of ways particularly loosely
and changing the very spirit of the concept; (ii) a trend towards centralisation of power; and (iii)
ever increasing gulf between the way a federal system purports to function and how it actually
operate in practice (Narang, 1995).
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The issue relating to the centralisation of powers has been one of the growing factors areas of
discomfort of the Centre-State relations. An important factor affecting this issue is the division of
revenue raising powered between the Centre and the states as governed by the Indian
Constitution, largely influenced by the Act of 1935 Government of India. The act was formulated
by the then Government for the administration of a Colonial economy, resting strong financial
control in the Centre, at a time when the provinces had very limited governmental functions in
the economic sphere. The reasons for this state of affairs generally may be divided into economic
and social factors. The first includes the variability of plan outlays and central assistance, the
inability of states to increase their own fiscal capacities, the burden of maintaining of the existing
scheme, the socio-economic factors pressures arising out of the central undertakings, the growing
costs of administration, and the chronic problems of fires, floods, famines and droughts of
certain areas. Secondly, the social problems relate to the fact that administrative efficiency is
seriously impaired by the special difficulties of particular states in the form of border problems,
metropolitan problems, congestion in services, crime, inadequacies in basic amenities, short fall
in productivity levels and the persistent pressures of administering the needs of weaker sections
in terms of health, medicine, housing and other welfare measures. Thus, it must be emphasised
that, there exist a great diversity in the needs and potentials of the states. Their population
densities, soil geographical propensities, socio-economic cultures and objectives are all divers.
And, given this chiaroscuro, the pursuit of a plan conceived by the Centre and the administered
by the states, are bound to give mixed results and it is difficult to expect uniformity in the matter
of achievement, rates of returns, and efficiency in expenditures (Chandrashekhar, 1988).
In all federal Governments, the Central Government has, during peace times, more resources at
their disposal than they require for fulfilling their legitimate responsibilities. In India, the
Finance Commission was expected to redress the imbalance between resources and
responsibility among the Central and the State Governments. The Planning Commission does, in
addition to what the Finance Commission does quinquennially, adjust the balance annually in
respect of development programmes. Besides, the central government gives policy leads through
subsidies, loans and so on. The central government also pumps from international organisations
or foreign countries through bilateral negotiations resources for development. The problem in a
federal state is to reconcile the demands of diversities with the compulsions of unities. A
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paradoxical phenomenon has surfaced in the struggle for autonomy between the Central and
State Governments. The States demand more freedom and larger resource allocation without
strings from the Central Government. They prefer stating their demands on their terms Adopt a
different stand in respect to…decentralised democratic institutions such as Zilla Parishads,
Panchayats Samities; Municipal Corporations and Municipalities. There is neither a State
Planning Commission (some states have State Planning Boards) nor a statutory Finance
Commission (Jagannadham, 1988).
The patterns of federalism in developing countries is significantly different in many ways from
that of the developed countries like Switzerland, the US, Canada and Australia. The federal
models that have been developing have emerged in the developing countries need to be
distinguished on several counts. First, the federal models of the developed countries have had a
relatively long time during which they had their teething troubles, learned to manage their
problems, carried out experiments, and acquired viability and peculiar features. Second, the
relatively long time meant relatively less stress and strain in the development of the models. The
development was and could be described as evolutionary and did not have to be revolutionary on
account of shortage of time or overcrowding of problems or difficulties to be solved within an
impossibly short period of time. Third, the developed countries have had the advantage of
relatively better educated, better trained, and better equipped modern scientific attitudes, skills
and technologies. This advantage is reflected in the way the developed countries have identified
their goals or solutions to their problems. The developing countries like India, Nigeria, Malaysia
and Egypt have been working under handicaps in three matters. In India historically, the
politicians who led the freedom movement were to sosme extent responsible for generating this
popular mood. While they were busy engaged in opposing and driving the British out, they had
neither the time nor the opportunity to estimate realistically the possibility and time over which
development, progress or happiness of people could be achieved (Jangam, 1988).
Narang (1995) points out that federal government presents a practical constitutional way of
winning support for political and economic integration from a heterogeneous population.
Federalism works because it Shifts the focus of political mobilisation from national to provincial
centre; shifts conflicts in homogenous provinces to inter-ethnic divisions, and gives ethnic
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groups local autonomy. Thus it provides the common ground between the centraliser and the
provincialist. The success and failure of the federal system, however, depends upon the attitudes
of participants both government and citizens. It is not simply a question of what is provided in
the constitution but what in practice understood and implemented. Needless to say, the
experiences of limited successes and failures suggests that for an effective resolution of ethnic
issue through federalism it is important that an autonomous region should enjoy effective control
framework of the fundamental norms of the state. Of course autonomy is not equivalent to
independence, and autonomous government should not accept to be immune from the influence
of central government. At the same time, however, the state must adopt a flexible attitude
approach which will enable the autonomous regions to exercise power, precisely when the
exercise of power runs counter to the state’s inherent choice for centralisation and uniformity.
Nathan and Hoffman (1991) challenge the prevailing notion found in the political science
literature that federalism involves a constant centralising process with the central government
becoming stronger vis-a-vis the state. Osaghae (1990) is also of the view that notwithstanding
the increasing erosion of previously exclusive state’s matters, two characteristically federal
features continue to be retained in most federations. First, matters into which central
governments have encroached have usually been placed on the concurrent legislative lists.
Central governments acting in collaboration with the states have coordinated and allowed
discretion to execute national policies and programmes differently. This situation at once
involves decentralisation (as the centre coordinates and leads) and non-centralisation (as the
states are still allowed to be different). Therefore, even if all matters become concurrent (the
trend indicate that this is possible soon), federal system will remain distinct. Second, (until all
matters become concurrent), one or two matters (whether trivial or substantial) are still retained
exclusively by the states. In theory and practice-actually or potentially-such matters may lose
their feature of non-centralisation, but as long as the states are allowed to implement (and
sometimes formulate) policies differently within the ambit of national standards, the system
remains federal.
As Nesiah (2012) notes, Indian federalism is a contested terrain, characterised by shifts in the
lines of diversity it engages with and the nature of that engagement. Since the 1935 Act had
10
drawn the borders of federalism for administrative convenience, these boundaries did not
necessarily resonate with the relationships of identity and community that constituted people’s
lives. With the State Reorganisation Act of 1956 the basis of Indian federalism was transformed
from administration to ethnicity. While Indian federalism is said to have its basis in language and
region, and given its lines of diversity, intersect and overlap, federalism cannot but address
questions that go beyond linguistic and regional identity.
2. Asymmetrical Federalism
The term ‘asymmetrical federalism’ has appeared in the mainstream literature at regular intervals
but only in a fragmentary manner. Livingston certainly alluded to asymmetry when discussing
the range of social diversities that gave rise to federalism in his famous article entitles ‘A note on
the Nature of Federalism’, but he neither specified the word nor did he use the phrase. Duchacek
(1970), Watts (1970), Stevens (1977), Elazer (1987) are some of the political theorists who have
contributed to the development of the concept of Asymmetrical Federalism in their writings.
Today, however, there is burgeoning literature on the subject of asymmetrical federalism and the
concept seems to be used widely. Part of the explanation for this is the nature and character of
contemporary international change that can conveniently be summarised as a combination of
increasing global and regional economic and political cooperation and integration. The general
impact of this change has been two-fold: firstly, it has led to the emergence of a new form of
political association between states in the international world and secondly, it has triggered a
simultaneous process of decentralisation within states. In consequence, constitutional and
political relationships both between and within the contemporary states in many parts of the
world are now increasingly contested and is complex (Burgess, 2006). Funk (2010) point it out
that for Burgess and Gress, asymmetrical federalism is not a secession creating mechanism, but
rather an instrument for ‘accommodating in a way which adds to the overall political stability of
federations.’ He further said that asymmetry can be used to find consensus and unity between
groups. It could be argued that asymmetry is essential for the survival of a federation in the case
where deep diversity is present. Adeney (2007) proposed that diversity can take form of one or
more units within a federation possessing more (and by the same token some possessing less)
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powers or responsibility than others. This type of federal arrangement has been termed an
asymmetrical one, and is often seen in federations that are internally heterogeneous.
Formal recognition of this significant development in comparative federal studies was evident in
the creation of two panels of scholars who met under the auspices of the Comparative Federalism
and Federation Research Committee of the International Political Science Association (IPSA) in
South Africa in 1993 to discuss both the concept and the empirical implications of asymmetrical
federalism. Further research papers were formally presented at the World Congress of IPSA in
Berlin in 1994 and were subsequently published in 1999 in a volume of essays edited by Robert
Agranoff and entitled Accommodating Diversity: Asymmetry in Federal States. Even a cursory
glance at these essays makes it clear that the intellectual point of departure for these scholars was
a then little-known article published in 1965 that was devoted to the conceptual utility of
symmetry and asymmetry in federalism. In that year the article written by Charles D. Tarlton
entitled ‘Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation’ was
published in the Journal of Politics. Forty years later, it has acquired an unexpected significance
for those scholars studying federalism and federation. Today, then, it has a new relevance and
new audience. Charles D. Tarlton was also known to coin the term Asymmetrical Federalism.
Rao & Singh (2004) stated that asymmetrical federalism is found in a federation or
confederation in which different constituent states possess different powers. One or more of the
states has considerably more autonomy than the other sub-states, although they have the same
constitutional status. The arrangements of Asymmetry federation can be viewed in both vertical
that is between centre and states and also horizontal - among the states. However, many thinkers
argued that ‘purists’ view of federalism is rare, if at all, seen in practice. Article 3 of the
constitution vests the Parliament with powers to constitute new states by separating territories
from the existing ones, alter their boundaries, and change their names. The only requirement for
this is that the `Bill’ for the purpose will have to be placed in the Parliament on the
recommendation of the President and after it has been referred to the relevant state legislature for
ascertaining their views (Chanda, 1965).
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The Constitution of Canada is broadly symmetric but contains certain specific sections that apply
only to certain provinces. In practice, a degree of asymmetry is created as a result of the
evolution of the Canadian federal experiment, individual federal-provincial agreements, and
judicial interpretation. Asymmetrical federalism has been much discussed as a formula for
stability in Canada, meeting the aspirations of French-speaking Quebec for control over its
cultural and social life without removing it from the national federation, where it coexists with
nine largely English-speaking provinces. There is also the danger that different rules for different
people living within the same territory can detract from that basic political equality which is a
necessary element of a functioning democracy. So, territorial governance is the framework for
Canada, but flexible territorial governance with different forms of government and different rules
to suit different populations. In the case of Canada, this means an asymmetrical federalism which
can make Canada, all of it, a model for the rest of the world (Pernthaler, 2002).
According to Mahant (2006), Federalism is a principle of government based on the territorial
division of powers. It is desirable to have special powers and asymmetric arrangements to
accommodate diverse group interests and identity and therefore, has an important role in ‘coming
together’ federalism as well as ‘holding together’ federalism. In holding together federal
systems—as obtained in India, Ethiopia, Iraq, Nigeria or elsewhere-recognition and
accommodation of autonomy demands of minority groups especially those having territorial
underpinnings should be premised on a people-centric approach. This is to suggest that
asymmetric federal arrangement of giving unequal powers/autonomy packages to different units
of the state should minimally be seen as an extension of the subsidiary principle of social justice.
Suan (2007) argued that the autonomy framework should be premised on the condition that
people of a specific locality know best what specific autonomous spheres activities/powers and
resources they should be endowed with and be given constitutional recognition. When
ethnocultural and linguistic boundaries overlap and irredentist movements gain momentum, they
should immediately be accorded political solutions. These may take the form of envisaging an
expansive sharing of powers via elite incorporation or by creating special representative
structures and incorporating what is call the home-grown autonomous institutions which give
voice and power to the people
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Federalism is an outcome of rational bargain among various constituents. The bargain may be for
political or economic gains. In the political bargain, the constituents give up political autonomy
for security from external threat. The economic bargain is to enable a common market and to
ensure optimal provision of public services by reaping economies of scale and catering to diverse
preferences. However while striking the bargain, the constituents try to preserve their valued
identity and seek special status. Motivation for special status may be purely for expanding
economic opportunities and securing freedom from exploitation by larger and more powerful
members of the federation. The objective may be purely political — of enhancing freedom and
representation to constituents or to maximize political power and influence. It may also be
cultural or religious — of preserving group identities. It may simply be a means of
accommodating diverse group interests within a unified framework (Riker 1975). Rao and Singh
(2004) opined that if federalism were an outcome of rational bargain among constituent units,
differences in bargaining strength would be a source of asymmetry. If the issues at stake have
general applicability to majority of units, then collective bargaining strength could result in
greater decentralisation and all sub-national units getting greater autonomy. If on the contrary,
the issues at stake have applicability or relevance to specific units and if they have the necessary
strength to secure the special dispensation, then this could result in asymmetric arrangements in
the federation. Such special arrangements may be de jure – enshrined in the constitution itself or
established by tradition, or may be actually observed in practice (de facto) in the working of the
federation. Such arrangements may be evolving. The way in which bargains are struck and
special demands of various constituents are accommodated through asymmetric arrangements,
have a vital bearing on the stability of the federation
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Constitutional-legal arrangement of entire universe of federal system that have been democracies
since 1988 and relationship to demos as given by Stepan (2004):
Symmetrical
Mono-national
Multinational
Asymmetrical
Austria
Austrialia
Argentina
Brazil
Germany
Switzerland
USA
Belgium
Canada
India
Spain
Stepan argued that all the long standing (largely) mono-national federal democracies are
constitutionally symmetrical but all the long standing (largely) multinational federal democracies
like India are constitutionally asymmetrical. He called a state multinational if (1) it has more than
one territorial based linguistic majority in the state, and (2) there are significant political groups
who would like to build political sovereignties, or an independent state or states, around these
territorially based cultural differences.
3. Types of Asymmetrical Federalism
Asymmetry Federalism does not simply occur but there are certain prerequisite of Asymmetry.
As Watts (2008) points out, “cultural, economic, social and political factors in combination have
in all federations produced asymmetrical variations in the power and influence of different
constituent units.” Burgess (2006) lists two general categories of preconditions asymmetrical
federalism, first the socio-economic and second the cultural ideological. The principle distinction
of asymmetrical federalism is its type and it can be either de facto or de jure. Watts (2008) define
De facto or political asymmetry is the result of the preconditions that arises from the impact of
cultural, economic, social and political conditions affecting the relative power, influence and
relations of different regional units with each other and with the federal government. De jure, or
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Constitutional asymmetry, refers to asymmetry that is constitutionally entrenched; it is the extent
to which the constitution grants non-identical powers to regions. In other words, some subunits
which are given constitutionally sanctioned power within a federation. The political asymmetry
means having varying degrees of power within a federation due to factors such as territorial size
population, economic character and social or cultural differences.
Brock (2008) mentioned that there can be two kinds of Asymmetry which may affect the
operation of any federation. Political asymmetry ‘arises from the impact of cultural, economic,
social and political conditions affecting the relative power, influence and relations of different
regional units with each other and with the federal government.’ In contrast to political
asymmetry, constitutional asymmetry refers to ‘the degree to which powers assigned to regional
units by the constitution of the federation are not uniform.’ Asymmetrical federalism is a current
reality and asymmetry is the oil that keeps the machinery of federalism operating. The problem is
not with the asymmetry itself but rather with the multiplication of asymmetrical arrangements in
the current era. There is no perfectly symmetrical or asymmetrical federation in the world. It is
better to see in asymmetrical federation can be looked as an instrumental device in
accommodating difference in a way that adds to the overall political stability of federations. Both
de facto and de jure asymmetries suggest flexibility in federations in the general search for
consensus among political elites and mass publics. Consensus cannot be taken for granted, but
needs to look at as something that is forged forged via hard bargaining and negotiations between
competing and sometimes conflicting elites (Burgess, 2006).
16
Given below is the conceptual difference of two types of Asymmetrical federalism:
Asymmetrical Federalism
De Facto
Federations to some degree,
namely differences between
subunits in terms of size and
wealth, culture or language,
differences
in
autonomy,
representation
Political Asymmetry: Arises from
the impact of cultural, economic,
social and political conditions
affecting the relations of
different regional units with each
other and with the federal
government
De Jure
It is the product of conscious
constitutional design. Allocation
of different amount or type of
powers, or autonomy in certain
policy areas to some subunits of
federation.
Constitutional Asymmetry: The
degree to which powers assigned
to regional units by the
constitution of the federation are
not uniform
Duchacek (1999) noted, “there is no federal system in the world in which all the component units
are even approximately equal in size, population, political power, administrative skills, wealth,
economic development, climate conditions, predominance of either urban or rural interests,
social structure, traditions, or relative geographical location.” Burgess (2006) points out tha
political parties constitute yet another type of de facto asymmetry within federations. Political
parties can be described as “vehicle of diversity.” Though De jure asymmetrical is still present in
many federations but it is less common than de facto asymmetry. In the De jure asymmetry it
officially identifies and recognised the differences among the constituent units like geographic
size, population, social and cultural make-up and economic situation that have led to de facto
asymmetries.
Swenden (1999) points out, “de facto asymmetry frequently leads to the entrenchment of some
formal asymmetric institutional devises.” This also means that the differences of establishing a
17
constituent unit in a federation by the federal constitution or law may not have the same power or
level of autonomy.
Watts (2008) theoretically makes a distinction between political asymmetry which exists in every
federation as to the geographical and demographic sizes of the units and constitutional
asymmetry which ‘refers specifically to differences in the status or legislative and executive
powers assigned by the constitution to the different regional units’. India is characterised by both
these types of asymmetry. One glaring example of political asymmetry in India is that the states
are represented in the Rajya Sabha not on the footing of formal equality as in United States of
America but on the basis of their population as written in Article 4 (1) and Article 80 (2) of
Indian Constitution.
On Indian federalism has recently been applying the concept of constitutional asymmetry under
which the state of Jammu and Kashmir, Nagaland, and Mizoram enjoy certain special position
and powers in the Constitution not enjoyed by others. Article 370 limits the power of the
Parliament to make laws for the state of Jammu and Kashmir to foreign affairs, defence and
communication as specified in the Instrument of Accession by dint of which the state joins the
Union of India in October 1948. Similarly Article 371 A and Article 371 E provide that a
parliamentary statute to be extended to the state of Nagaland and Mizoram require the consent of
the legislatures of those states, if the law concerned relates to religious and social practices of
Nagas and Mizos, their customary law and procedures, administration of civil and criminal
justice affecting these customary laws, and ownership and transfer of land resources of these
states (Saxena, 2012).
4. Theoretical Debates on Asymmetrical Federalism
Federalism is a complex concept and is not a recent one. It did not emerge out of a theory but out
of necessity. The states have adopted the federal model as a primary reason accommodates
multiple differences or language identities. There is a combination of self-rule and shared-rule
factors that provides a way for autonomy within political union. It “holds out the possibility that
these different communities can share states in which members have multiple identities and
affiliations and look to different orders of government to assure the flourishing of their identities
and to facilitate peaceful relations between groups.” (Karmis and Norman, 2005).
18
Conceptualising Different Perspective on Asymmetrical Federalism
Alfred Stepan
Asymmetrical
Federalism did not
bring Secession
Charles Tarlton
Prone to Secession
Michael Burgess
Accommodative and
Secessionist
potentials depends
on specific cultural
and historical
contents
Unitary federalism
bring Secession
A flat prior assertion
cannot be made
Depends on Context,
motivations of the
parties involved
details of the
autonomy
arrangement
Accommodate
differences that lead
to overall political
stability of
federations.
Will Kymlicka
National identity
of minorities
receives the same
concern and
respect as the
majority nation
Success in
accommodating
self government
may encourage
national
minorities to seek
Secession
becomes more
likely when
national
minorities
become politically
Kymlicka (1999) noted that federalism in the United States and Canada, far from empowering
Indian peoples, has in fact simply increased their vulnerability, by making their self governance
subject to encroachment from both federal and state/provincial governments. The achievement of
Aboriginal self-government through ‘federacy’, therefore, involves protection against the federal
system. The very success of federalism in accommodating self government may simply
encourage national minorities to seek secession. The more that federalism succeeds in meeting
the expectations for self-government, the more it recognises and affirms the sense of national
identity amongst the minority group, and strengthens their political confidence. Where national
minorities become politically mobilised in this way, secession becomes more likely, even with
the best-designed federal institutions. Barry (2001) claims that asymmetry creates two classes of
19
citizens, Kymlicka (2001) argues that minority-nationalities, as opposed to regional based units
are entitled to special status because asymmetry "ensures that the national identity of minorities
receives the same concern and respect as the majority nation.” He further stated that special
status for nationality-based units can be seen as promoting moral equality, since it ensures that
the national identity of minorities receives the same concern and respect as that of the majority
nation. There are many reasons why federal systems have difficulty adopting asymmetrical
arrangements. Indeed, these problems are so severe that some people have claimed that a federal
system cannot survive for long if it adopts asymmetry. This is an overstatement, but there are
greater limits on the flexibility of federalism than many proponents of federalism admit.
Tarlton’s ‘theoretical speculation’ has provided scholars of federalism and federation with new
concepts in order to be able to appreciate more fully the many complexities of federal systems. If
we discount his prejudices about symmetry and asymmetry, these novel routes of investigation
can offer many fresh insights into the comparative study of federal systems. Today the term
‘asymmetry’ no longer possesses the negative connotations attributed to it by Tarlton. On the
contrary, asymmetry is now regarded very much in a positive vein, bordering on virtue. It is
ultimately linked to fundamental issues of legitimacy, participation and political stability. It is
also related in a complex way to state–society relations and to the basic question of governance
in federal polities. But it is vital to remember that ‘diversity’ in itself is not a sufficient basis for
the existence of asymmetrical relations. It is necessary to examine both why and how the
preconditions of asymmetry are translated into practical asymmetrical outcomes. These
theoretical reflections suggest that asymmetrical federalism and federation can be construed in
two principal ways: first, as an analytical tool for the purpose of problem-solving in pursuit of
federal political stability; and, second, as a normative or prescriptive predisposition reflecting
particular, values, beliefs and interests. It can therefore be distilled as empirical political theory
and as normative political theory (Burgess, 2006).
The problem is not simply that regional and nationality-based units happen to desire different
powers. These variations in desired powers reflect an even deeper difference in the very
conception of the nature and aims of political federation. For national minorities, federalism is,
first and foremost, a federation of peoples, and decisions regarding the powers of federal
20
subunits should recognise and affirm the equal status of the founding peoples. On this view, to
grant equal powers to regional-based units and nationality-based units is in fact to deny equality
to the minority nation, by reducing its status to that of a regional division within the majority
nation. By contrast, for members of the national majority, federalism is, first and foremost, a
federation of territorial units, and decisions regarding the division of powers should affirm and
reflect the equality of the constituent units. On this view, to grant unequal powers to nationalitybased units is to treat some of the federated units as less important than others (ibid).
6. Contextualising Federalism in India
The Indian federalism is asymmetric unlike American federalism which is symmetric. Rao and
Singh (2004) stated that asymmetric arrangement in Indian federalism has a long history and
goes back to the way in the manner which the British unified the country under their rule and
later the way in which the territories under the direct control of the British and various
principalities were integrated in the Indian union. The Union of India in 1947 began with a major
asymmetry between British India and the princely states and even among the latter, the terms of
accession differed depending on the bargaining strength. In almost all cases, the princely states
surrendered whatever notion of sovereignty they had to the new country of India, in exchange for
a guaranteed revenue stream. The nature of this bargain was clear – security and money in
exchange for giving up authority or residual control rights. Broadly, the asymmetric arrangement
was recognition of the different set of institutions and administrative standards in the country,
which over the years, was unified. The asymmetries present in 1947 with respect to almost all the
princely states disappeared from Indian federalism.
The importance of India’s regional and ethnic character has been well emphasised by history and
geography. The provinces and the local governments in the various empires from the Mauryas to
the Mughals enjoyed considerable degree of autonomy. The British, at the commencement of the
regime did try to centralise all power. But the period of 150 years of colonial rule was not
sufficient long to convert India into a compact nation. The British soon realised, especially after
the traumatic consequences of Dalhousie’s policies, that it was impossible to administer a vast
and diverse country like India without progressive devolution or decentralisation of powers to
the provinces and local bodies. From as early as 1861, and especially after 1919, the history of
21
British India was one of gradual devolution of power to the provinces. The Simon Commission
(1927-29) and the Butler Committee (1927-30) both visualised an eventual federal union for the
whole of India. By 1935, in the face of the hard realities of the Indian situation, the British
Government had committed itself to a federal form of government as a solution to a number of
crucial problems. In the first place, it provided the way of yoking together within a single
constitutional system the portions of India under indirect rule and those under direct rule.
Secondly, since the increasing communal antagonism was attributed to the congress emphasis
upon monolithic unity and centralisation, and to Muslim fears of Hindu predominance, it was
hoped that a federal structure might reconcile the two groups by accommodating Muslim
anxieties within a United India (Narang, 1995).
On the other hand, the Congress from its inception was made up of English-educated elite and
their attitude during the freedom movement was very ambivalent. This composition plus the fact
that the main purpose of the Congress was to provide an Indian alternative to centralised British
power, meant that the Congress, early in its history, developed a strongly centralist thrust. But
the Muslim, being a minority community, had their apprehension about the concept of
centralisation. They thought that this would inevitably mean, a Hindu-dominated India. Since
they were in majority in some province and princely states, they thought they could minimize
this danger by demanding a federal structure with large measure of autonomy to the provinces.
The congress leaders in their anxiety to draw the Muslim into the struggle against the British
conceded the federal concept. The Lucknow Pact (1916) between the Congress and the Muslim
League and all subsequent negotiations between the two over the next three decades, were based
on this concept. At Nagpur Session (1920) the Congress also resolved that the federal set up of
India would be based on the principal of language. During 1946, as a result of the negotiations
between the British government on the other hand, and the Congress and the Muslim League on
the other, the Cabinet Plan emerged. This plan envisaged a very weak Centre and a two-tier
governmental system under the central government. The jurisdiction of the union was to be
limited to foreign affairs, defence and communication and the power to raise finances for the
discharge of these functions. All subjects other than union subject were to be within the
jurisdiction of provinces. They were also to be vested with residuary powers. The princely states
were to retain all subjects and power other than those ceded to the Union (ibid).
22
Thus, on the eve of independence in India because of the vastness of its territory and population,
the integration of the princely states with their historic and institutional differences, and the deep
roots of linguistic regionalism, there was little disagreement about the need for a federal, rather
than a unitary form of Constitution. In December 1946, Jawaharlal Nehru introduced in the
Constitutional Assembly a resolution which “envisage a Republic of India wherein the various
territories would possess and retain the status of autonomous units together with residuary
powers, and exercise all powers and functions of government and administration save and except
such powers and functions as were vested in or assigned to the union or as were inherent or
implied in the Union or resulted therefore.” Debates in the Constitutional Assembly suggest that
it clearly intended the proposed political system to be basically federal in character.
Kumar (1988) points out in his study on Indian Federalism that an analytical study of the
Constituent Assembly debates reveals that while the protagonists of provincial autonomy were
neither absent nor silent in the Constituent Assembly, three factors gave centralised the final say.
These were: (i) the circumstances prevailing at that time which weighed heavily in favour of a
strong federal government; (ii) the unorganised nature of the centrifugal forces which made it
difficult for them to make any appreciable impact on the decision-making of the Assembly; and
(iii) the role of the Congress leadership which had much say in the working of the Constituent
Assembly though convinced that in a vast country characterised by cultural and religious
diversity a federal governmental structure alone could work, felt that a fortified central authority
was imperative to maintain the unity and integrity of the nation.
There could have been many ways to achieve this but the way chosen was that of an imperialbureaucratic stated on the basis of the British imposed imperial Constitution of 1935, particularly
in its federal provisions. The basis for federalism in India was the product of the conflicting
cultures, one representing the nationalist leaders’ normative concerns for India’s unique
personality as shaped by the course of history and geography, and rooted in the infinite variety of
local situation, and the other reflecting their new concerns for unity, security and administrative
efficiency. While the former led to the establishment of a basic framework of federalism, the
later resulted in the setting up of several centralised and authoritarian institutional arrangements
in the tradition of the earlier colonial rule. The framers of the Constitution accepted the
23
Government of India Act of 1935, which gave shape to the idea of federalism with a strong
centre as a model (ibid).
Jagannadham (1988) propound that the Centre-State relations are a subject of perennial debate
and discord in all federations. India is no exception, not withstanding the controversy whether
India is federal of classical type or only quasi federal or not federal at all, in spite of the division
of powers judicial review etc. The surprising developments under Indian Constitution are
twofold:
(i)
The establishment of the Planning Commission by a resolution of Government within
three months after the introduction of the Indian Constitution, with or without
realising the Constitution implications, and
(ii)
The virtual one and the same party rule at the Centre and in a large number of states-as
a fact and as a desired preference. There might have been instances of this kind in
other federations-USSR, Australia etc., but not combining them for so long with the
system of parliamentary democracy involving periodic elections and renewed
development planning every five years.
What is the relevance of these two developments to Centre-State relations today and to the
future? The relevance lies in the culture of contextual conditions. The past cannot be wiped out
or ignored and nowhere is future written on a clean slate.
The largest federal democracy in the world, the Republic of India, is on the borderline of our
distinction. The independence of India was achieved by a national independence movement
spearheaded by the Congress Party, which accepted initially a federal solution in the hope of
holding together the whole subcontinent including what would become Pakistan and Bangladesh.
The Congress Party has been, and still is, a nation-wide party that has been, and is, competing for
power in all the states of the federation and for a long time has been governing most of them. Its
opponents, like the Janata Party or the communists, have also in principle aspired to and in fact
have governed India and not questioned the unity of the state and the Indian nation. However,
there are parties like the communists in Kerala, that are, and have been, dominant at the state
level or, like the Hindu fundamentalists, have advanced a conception of the nation different from
24
that of the founding fathers and the Congress Party at the time of independence. The immense
majority of the population shares a sentiment of Indian nationhood although some would like to
redefine that sentiment as a Hindu nation. However, India is also a multinational federal state in
which nationalist parties not competing in the whole federation but for power in particular states,
like in the Punjab or the in Tamil Nadu and various nationalist movements (Nagaland, Mizoram,
Sikkim) on the eastern periphery, compete for power at the state level, demanded the creation of
new states and even advocate secession. India therefore is, for most Indians, a nation-state, for
others perhaps a state-nation, for significant minorities a multinational state and for minorities a
state incompatible with their national independence aspirations, as in the case of Kashmir. In that
context, federalism has become more and more important for holding the Republic of India
together (Linz, 1997).
The Indian Constitution provides considerable degree of legitimacy and rationality in the
performance of these tasks under the various layers of the government with due regard to the
need for centralisation of power in the hands of the federal Government through the Central list,
state government list and the concurrent list. The question of solving the disputes between the
centre and the states and between the states, have always been attended to with unexceptionable
or exceptional expertise and the original zeal for regard and reverence to preserving the authority
of the centre has no need to stoop down or to condescend in favour of the states by virtue of its
unquestioned stance and situation, the need for consideration of the views of the states arises
from various directions. In this regard, the most important fact is represented by economic
planning itself, which is a matter superimposed on the states. Planning for development calls for
resources of an extra-ordinary order, both internal and external, and while the internal sources
are fewer, the external are the exclusive preserve of the centre. The state governments have to
respect the sentiment and the discipline involved in planning, and while so doing, have to abide
by the national objectives of development, the state policy, and the deployment of resources in
accordance with the guidelines. These guidelines become more stringent as and when the
dependence of the states increase in terms of loans, grants and other forms of assistance
(Chandrashekhar, 1988).
25
There are no instances of the state governments in India opting out of the national planframework for the reason that the entire institution is based upon consensus, need and its
concomitance is unquestioned. In the development of this national strategy, it is therefore clear
that, its formulation is a task to be undertaken at the national level. It is in the system of things
itself, that different political parties, other than the one at the centre, may come into power at the
regions, and they have a right to enjoy the facilities of the constitution in a fair measure as long
as they have the democratic support, and as long as they work within the spirit and letter of the
law, and the centre has the responsibility to extend its support through the established norms.
The constitution envisages a federal polity with a strong centre but autonomous states, both
functioning according to the established conventions of parliamentary government. In the words
of B.R. Ambedkar, “the working of a constitution does not depend wholly upon the nature of the
constitution”. “The Constitution can provide only the organs of the state such as Legislature, the
executive and the judiciary. The factor on which the working of these organs of the state
depends, are the people and the political parties they will set up as their instruments, to carry out
their wishes and their policies”. In this regard, we may cite the statement of Ramakrishna Hegde
that “we must have a truly federal system”. “Over the last few years, the parliamentary system
has tended not only to concentrate more and more powers in the centre; it is increasingly
becoming unitary in its functioning. This is a dangerous the country” (ibid).
The constitution assembly discussed tribal policy as a part of the effort to negotiate the transition
from political ‘struggle’ to social ‘reconstruction’. Self-rule was the principal which inspired the
struggle and for negotiating this transition. In these debates the meaning of self-rule was
confined to rapid economic and industrial growth and to political-legal autonomy required for
this purpose. Their social content was determined by the notions of ‘progress’, ‘development’
and ‘welfare’ evolved by the British. Accordingly, the idea of self-rule was translated into a
secular political policy of culture non-interference. This prepared the ground for a mode of
governance that emphasised political neutrality to cultural differences over perceptions of
property and territory. Accordingly, within the boundaries of the State, neither a person nor a
‘body’ was entitled to inalienable rights over any part of its territory nor could they alienate any
other person or ‘body’ from their rights over the territory within its geographical boundaries.
26
Only the State can grant and annual these rights. Thus, the state acquires control (monopoly)
over them. For this reason it is sovereign, and therefore, has the responsibility to protect its
territorial boundaries from external aggression and promote the welfare of people who live there.
To fulfil its responsibility in accordance with the principle of non-interference, the State protects
public interest and at the same time safeguards the cultural right to community identity. In this
arrangement the right of communities to cultural identity is linked with property and not
territory; that is to say a community can be considered by acquiring means (property being one)
to promote its cultural activities, so long as territorial integrity of public spaces, as defined by
law is not violated. This opens up public spaces competition and political struggle between
various communities over territory and property. From this competition emerged the dichotomy
between the majority and the minority on the one hand and between the mainstream and the
margins on the other. The tribal policy that emerged from the constituent assembly debates did
no question these dichotomies. On the contrary, another dichotomy was introduced, viz.,
between ‘protection’ and ‘reform’ (Savyasaachi, 1999).
These dichotomies contain to underlie the formulation of the Fifth and the Sixth Schedules.
Accordingly, autonomy does not protect the tribal dwellers from the outsiders. On the contrary, it
is means to isolate and civilise them. The elite, schooled in the liberal traditional of governance,
did not have the ear for the voices of the tribal forest dwellers, nor did they see that both
protection and reform were based on social relations of dominance and subjugation. There is
need to examine the well-being of the tribal forest dwellers. In the light of the long history of
tribal movements these dichotomies need to be questioned. Is it not necessary to step out of the
framework of the dichotomies to be able to perceive tribal identity’ from the perspective of selfrule? Is it self-evident that the ‘tribal policy’ will assist the formation of such an identity? Is not
the tribal policy an instrument in the hands of the State and not in the hands of the people/ has it
not been responsible for eroding their tradition of work? Have not the development programmes
been indifferent to their voices? From the stand point of these dichotomies, the term ‘tribal’ is
not a conceptual category to describe the social and cultural life of a group of people. It is a
political category which was invented to keep them on the margins so long as they do not adopt
the normative order of non-tribal mainstream work culture. It, therefore, perpetuates the
27
normative order of scientific progress. It reinforces the image that the people are primitive,
backward and underdeveloped. Thus, a meaningful discussion on the identity of tribal people in
India is possible only when this frame of thinking is abandoned. This will prepare the necessary
ground to know tribal forest dwellers as ‘thinking beings’, to understand their view of the world
and its link with the production and reproduction of skills and the appropriate knowledge
required for a livelihood. It is important to remember that their way of life has its own
shortcomings and incongruities and they have their method of dealing with them. They are like
any other people, as good or as bad (ibid).
Narang (1995) stated that at the time of writing the Indian Constitution, the Constituent
Assembly postponed the revision of states on linguistic lines. Thus, the political map of the
country was made up of highly disparate bits and pieces. According to administrative
convenience, 28 states were formed which were linked together in three large groups, A, B and
C. The new administrative and political division reflected the fact that the princely states no
longer existed. The three categories of states had different structures of federal relationships.
States in part A were created on the principal of federalism and there was a corresponding
division of responsibility between them and the centre. Class C states were in substance, under
the complete control of the centre. The President was to administer them through a Chief
Commissioner or a lieutenant Governor, appointed by him or through the Governor of a
neighbouring state. Part B states were also, in a sense, controlled by the Centre as they had to
carry out the directions issued by the President under Article 371 of the Constitution. The states
did not reflect ethnic areas but rather the administrative and territorial divisions which had grown
up over the course of time during the era of British rule in India. While the Constituent Assembly
did not recognise the ethnic basis for sharing of political power through culture or linguistic
based states, it did incorporate in the Constitution certain rights for minorities in Part III of the
Constitution relating to Fundamental Rights. It guarantees freedom for all citizens and prohibits
discrimination on any basis of caste, creed, religion, language, place of birth, etc. At the same
time, it provides for the minorities the rights to conserve in their language and script and to
establish and administer educational institutions of their choice (Article 29, 30).
28
In the same way, Article 347 has empowered the Union President to protect the use of the
language of a minority or substantial proportion of the population of a state. Similarly Article
350 gives the minorities the right to submit a representation for the redress of any grievance in
their own language. A few more safeguards under Article 350A and 350B were guaranteed to the
minorities after the State Reorganisation Act of 1956. Accordingly they were provided with the
facilities of education in their mother tongue at the primary stage. Article 120 of the Constitution
provides facility to a Member of Parliament, who cannot properly express himself in Hindi or
English, to address the House in his mother tongue. Similar provision has been made in regard to
the member of a state legislature by Article 210 of the Constitution. Reservation of government
jobs for the minorities was not favoured by the framers of the Constituent Assembly as it was
feared to further sharpen minority consciousness. In general, federal system gives control over
cultural, educational and linguistic policies to states governments. But in the absence of real
autonomy and overriding centralising powers, these provisions have been found inadequate.
The Centre-State relations in India have been dominated by the historical background of the
relations that subsisted between the Centre and the then provinces in British India, and the family
resemblance that the Constitution respects the Government of India Act of 1935 that had been
enacted by the British Parliament long before it became an independent nation. The three
decades that have passed since Independence, have further strengthened this position and led to a
state of Centre-State relations somewhat analogous to that exercised by the centralising role of
British rule in this country. The long period dominance of one political party, both at the Centre
and the States, has further added to the central dominance. The reorganisation of the states on
linguistic basis, and the advent to power in the States of different political parties has been the
first real move by the state against central dominance and the beginnings of a move for real state
autonomy without disturbing the unity or integrity of the Indian nation. The recent rise to power
of regional parties represents an uneasy coalition of different political parties, indicating that the
climate is ripe for a new debate on Centre-State relations. When the Constitution was framed,
Madras, Bombay, Hyderabad, Punjab and Assam were all composite states; one political party
dominated the scene; and feelings of nationalism with enthusiasm for a strong centre gave little
room for any vigorous display of state autonomy. The position is entirely different today. While
29
the feeling of national unity and integrity still prevail with all their previous strength, there is
now a feeling that the unity of the nation and strength of the Centre do not call for denigration or
weakening of the states. On the contrary, the feeling is growing that the unity of the nation turns
on the development of self-reliance of the States and that the strength of the Centre depends upon
the strength of the States. The need for India to function more effectively as a federation rather
than as a Union dominated by the centre is gaining ground. It is good political wisdom to
recognise this evolution in Indian political and popular thinking and make it unambiguous and
crystal clear that India is a federation of states and not just a ‘Union of States’ (Rao, 1988).
Rao (1988) further stated that the federal system of government is best suited to this country, and
it should not be abandoned in favour of a unitary system. Also, it is even more desirable to add
the word ‘federal’ to the words ‘secular’ and ‘socialist’ and to the expression ‘sovereign
democratic republic’ enshrined in the preamble of our constitution. And the Central list should
be re-worded as the ‘federal list’. There should also be a re-examination of the subjects included
in the concurrent list with a view to examining which of them, if any, should be transferred to the
State list. In fact, the concurrent list should be of a minimal character, for in the kind of states it
has in India, with the Central dominating the fiscal, monetary and economic spheres, it is the
Centre which exercise more influence if not also power on the subjects contained in the
concurrent list than the State which financially are much weaker than the Centre. It is only when
it comes to the spheres which are placed by the Constitution either exclusively in the States list
or in the concurrent list major problem arise in Centre-State relations. The increasingly
encroaching on the sphere exclusively allotted to them under the Constitution in the list 2 of the
Seventh Schedule and tending to play a dominant role in the spheres allotted to them for
concurrent jurisdiction under list 3 of the same schedule; and this they trace to the dominant
power of the Centre in the financial sphere and the lack of sufficient fiscal resources on the part
of the State for the fulfilment of their Constitution functions. The major problem for review in
Centre-State relations, therefore, turns on the financial sphere of these relations, and during the
last three decades and more, after the advent of planning, about sixty to sixty five per cent of the
resources of the states comprise transfers of the central government in the form of statutory and
30
non-statutory transfers, i.e., tax revenue devolutions, loans, plan assistance, grants and non-plan
assistance for various kinds.
The Constitutional Assembly debates questioned neither the validity of ‘excluded, partially
excluded areas’, nor the view that tribals were backward. Nor did they draw upon the traditions
of tribal and peasant movements to find out their mode of participation in the making of
independent India. They sought to deal with problems of social justice, that arises from a
situation where cultural pluralism and politico-economic inequality are co-exist, without reexamining the secularist policy of non-interference on questions of social and cultural differences
was appropriate for the purpose. Article 16 (4) and Article 335 were formulated to deal with this
problem. The debates on this and other related issues were within the theoretical framework of
the liberal political tradition of governance of the British. The constitution provisions for the
tribal people were evolved also in the course of the debate. It was argued that the principles of
political and economic democracy incorporated in the Directive Principles of State Policy would
create appropriate conditions for social justice. During the discussion on the Directive Principles
Dr. B.R. Ambedkar said:
As I stated, our Constitution as a piece of mechanism lays down what is
parliamentary democracy. By parliament democracy we meant ‘one man one
voice’ … The reason why we have established in this Constitution a political
democracy is because we do not want to install by any means whatsoever a
perpetual dictatorship of any particular body of people. While we have established
political democracy, it is also the desire that we should lay down our ideal
economic democracy. We do not want merely to lay down a mechanism to enable
people to come and capture power. The constitution also wishes to lay down an
ideal before those who would be forming the government. That idea is economic
democracy, whereby, so far as I am concerned, I understand to mean ‘one man
one vote’. The question is: have we got any fixed idea as to how we should bring
about economic democracy/ there are various ways in which people believe
economic democracy can be brought about; there are those who believe in
individualism as the best form of economic democracy; there are those who
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believe in having a socialistic state as the best form of economic democracy; there
are those who believe in the communist idea as the most perfect of economic
democracy. Now, having regard to the fact that there are various ways by which
economic democracy may be brought about, we have deliberate introduced in the
language that we have used, in the directive principles, something which is not
fixed or rigid … (Constituent Assembly Debate Vol. VII 19 Nov 1948: 494).
In this regard Savyasaachi (1999) analyse that the principle underlying political and economic
democracy is ‘one man one vote’. A vote, therefore, is an instrumentality to assert and define the
right to economic equality. This in turn is described in the right to property (Article 300A).
Together they determine the economic and the political infrastructure of the industrial
production process and the productive capacities for modern industrial work and enterprise. The
democratic character of this infrastructure and of the process can be judged from the fact that
traditions of work other than the dominant industrial had no scope for growth and enrichment.
For this reason, plural modes of earning a livelihood with which people were familiar were
eliminated.
In India, the diverse back ground of states, regions within states, has created problems and
dissatisfactions especially from the minority communities. To address this inequalities,
asymmetrical federalism of special provisions, including financial and incentives, have to some
extent address these problems. The constitution of India has very much from its origin outset has
designed special status and provisions in order to cater specific needs and requirements. For
example the Article 370 and 371 of the constitution of India makes special provisions for the
state of Jammu and Kashmir as per its Instrument of Accession and for some states in north
eastern region. The proviso of the article 370 provided the state with a unique power and
provision in the Indian union which allow having its own constitution and a special assignment
of functional responsibilities. The state’s legislature has residuary powers and the jurisdiction of
the centre was limited to communications defence and foreign affairs. In this context there is a
striking contrast to the situation of other states under the Indian federalism where the centre’s
power was much more extensive and retained residuary powers. Under the article 371 makes the
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states of Assam, Andhra Pradesh, Arunachal Pradesh, Manipur, Mizoram, Goa, Nagaland,
and Sikkim are made with special provisions for governance, development and protection of
their identity, land and resources
K Suan (2007) also pointed out that given the sweeping effects of globalization on different
social groups we are going to encounter more of the birth and mobilization of ethnic minorities
in the foreseeable future. The greatest threat and challenge to the unity and integrity of the
modern state will come from territorially concentrated minorities, also popularly known as
“nations without states.” Asymmetrical federalism and its success in Jammu and Kashmir and
the Punjab in India may perhaps have to be interpreted more cautiously however. Nonetheless
there can be no doubt at all that, notwithstanding separatist movements and intermittent violent
conflict, the Indian federation, currently comprising 28 constituent state units and seven Union
Territories (Burgess, 2006).
The current theory pertaining to Asymmetrical Federalism is widely debated. For instance
Stepan (2004) debated that Asymmetrical Federalism did not bring Secession but Unitary
federalism while Tarlton (1965) argued that it is prone to secession. This idea was further
expounded by Michael Burgess who debated that Asymmetrical Federalism has accommodative
and secessionist potentials and depends on specific cultural and historical contents and also
points out that a flat prior assertion cannot be made.
It is imperative to mentioned what Tillin (2006) has analysed asymmetry in Indian federalism
that the Article 370 should not be interpreted as representing a type of asymmetry with which
many Quebecois nationalists in Canada would be satisfied in term of power and autonomy
enjoyed by them. He argues that Kashmir’s asymmetrical status in the Indian constitution did not
stem from recognition that its ethnic or religious distinctiveness constituted a basis for a higher
degree of self-government than other Indian states. Instead, Article 370 was a temporary
expediency designed to govern the state’s relations with India before the military conflict over its
status could be resolved. On the other hand, he stated that some of the newer states with large
tribal population in the geographically remote north-east, separated from the rest of India by
Bangladesh, have certain asymmetrical provisions enshrined in the constitution to protect
customary law, social and religious practices, and land ownership. Under the Sixth Schedule,
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innovative constitutional arrangements were introduced for autonomous district councils for the
tribal areas of Assam, Meghalaya, Tripura and Mizoram and other states have also been given
special status. The varieties of special status in the north east are the closest India comes to de
jure asymmetrical federalism. What he meant in the context of north east was the Sixth Schedule
and Article 371.
India at independence was de facto a unitary state in terms of the civil service and the legal
system. However, India had more than 15 languages spoken by at least 10 million people each, a
large Muslim minority (now numbering over 120 million). India also had troubled areas in the
Northeast that had never been sociologically or politically integrated into India by Hinduism, or
by the normal functioning of British rule, nor deep involvement with the Congress party
independence movement (Stepan, 2004). Given this significant potential for secessionist
movements in newly independent India the constituent assembly in 1947-48 determined that the
best way to “hold together” India as a peaceful and democratic state would be to become a
federal system which allowed constitutional asymmetry within its federal structures. The massive
Linguistic Reorganisation Act of 1956 is generally considered by democratic theorist to be the
largest and most democratically successful case of boundary redrawing ever accomplish. India’s
“asymmetrical federalism also allowed the creation of new states out of Assam as a way to better
manage the extreme difficult situation in the Northeast (ibid)”.
Rao (1988) is of the opinion that for a country of this size and diversity, India’s national strength,
integrity as well as economic development with social and regional justice can be secured only
by a federal government at the centre and federating states with sufficient autonomy to make for
self-reliant and responsible administrations, but without the right to secession and subject to
constitution safeguard against internal disorder and external subversion. The strength of the
national government vis-à-vis the rest of the world, as well as its effectiveness to promote overall
national development with regional and social justice depends on the strength, self-reliance and
responsible functioning of State governments, and not on a donor-client relationship between the
Centre and the states, nor on pulls, pressures and agitation by State government or their
populations, for desired action by the Centre. The heart of the question lies in the fiscal sphere,
and hence the reason for dealing with it at such a length. Above all, however, what is required is
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a different style of political, economic and bureaucratic functioning on the part of the centre in
its relation to the States. The Central Government is, undoubtedly, the leader and the cocoordinator among the government both at the Centre and the States in India, but it should not be
a patron or rich uncle or father-in-law dispensing favours, let alone be a boss or a dictator. Its
influence on the spheres within the constitutional purview of the states should rest on technical
expertise, scientific knowledge, superior information, and awareness of national implications and
not on financial favours, only then can India grow to its full stature both nationally and
internationally, and have development with both social justice and political stability. It is hoped
that the national debate which has now started on the subject of Centre-State relations will lead
to this happy culmination.
Institutions associated with welfare are total institutions because the political rights of the state
dominate over and undermine the cultural rights of a citizen. The idea of welfare, promoted by
these institutions, is premised on an asymmetry between the political and cultural rights of an
individual. For this reason, it perpetrates violence and under this condition the processes of
production and reproduction, of generation and recuperation, of self-activity in nature and in
culture are impaired. This creates a subsistence crisis and poses a question, namely, under what
social and cultural condition is it possible for processes of regeneration and self-activity in both
nature and in culture to ensure subsistence? Self-rule is meaningless when the acquisition of
common land and subsistence for militarized industrial development cannot be questioned. For
not only does such development generate imbalances in production economy, but also
dispossesses the tribal people in particular of their life-support system. The recommendation for
compensation and rehabilitation completely ignores the experience of the last 50 years of
development which shows that rehabilitation schemes have not succeeded. If rehabilitation is not
to be a part of development than there is a need to think of ways in which community notions of
the common good can define public interest and the nation-state. Why is it not possible to say
constitutionally that whatever and whenever common lands and related modes of livelihood are
being violated by development activities the latter will be suspended, until another better
arrangement can be made wherein the relations between the sacred geography of the commons
and the political geography of development are not incongruous? This is not going to take us
back to their past. On the contrary it will recover and restore the social and cultural ground on
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which the future can be built on the principles of self-rule. The demand for tribal self-rule needs
to be articulated from the standpoint of human rights and non-destructive development, that is,
the preservation and enrichment of tribal forest dwellers’ method for acquiring knowledge and of
making it meaningful for their way of life. This method underlies their culture practices and their
work habits, and is premised on their proximity to the forest. On the one hand it enables them to
gather knowledge about the forest universe and ensures subsistence. On the other hand it equips
each person with the skills of a primary producer (Savyasaachi, 1999).
India as a case study of a multinational and multicultural federation has demonstrated a
remarkable flexibility in constitutional design, amendment, legal interpretation and political
versatility. It accommodate the profound complex and subtle social diversity typically expressed
as overlapping ethnic, regional, tribal, communal and religious as well as sub-state national
identities. Consequently, it is not difficult to find concrete evidence of such flexible adjustment
and adaptation to changing needs and demands, and not only in the more familiar problems of
Assam, Kashmir and Punjab. Other examples where the federal spirit can also be seen at work
are in the cases of Nagaland (Article 371A) with protection of its own pre-existing laws,
protection of its local identity via restrictions on immigration and a preferential financial regime,
in Sikkim (Article 371) with the reservation of seats on the basis of community and religion in
the state assembly and judicial recognition of its special status, in Mizoram (Article 371G) with
protection for Mizo customary law and religious social practices, and in Assam (Article 371B)
and Manipur (Article 371C) with flexibility for special needs provided by committees of the state
legislatures. The list of such cases in India is voluminous and it is important to emphasise the
adaptive capacity of the federation in managing and defusing sub-state national, ethnic and tribal
conflicts (Burgess, 2006).
Drawing from these complex realities in India and how the Indian state has worked out its
asymmetrical structure, the theoretical debate and understanding within the framework of
Asymmetrical Federalism is proposed to be advanced further with empirical data emanating from
the state of Manipur which is the subject of this study. The following chapter gives a detailed
analysis of the conditions in Manipur expounded within asymmetrical federalism, envisaging the
possibility of producing new knowledge related to the theory. Together with this it is hoped that
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a better understanding of the Manipur situation is reached through this methodological
engagement.
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