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Constitutionally, India’s governance structure is quasi-federal. While in a unitary setup, the power to legislate is concentrated in the Centre, in a federal structure, the units that form the federation have varying degrees of autonomy and powers to conduct their affairs.
In the Indian context, while states do have autonomy, the Constitution tilts towards the Centre on certain areas, thus making it quasi-federal. The Seventh Schedule of the Constitution contains the Union, State and Concurrent lists that prescribe subjects that the Centre and states are empowered to legislate upon. For those in the concurrent list — which both the Centre and state can legislate upon — the Union law would prevail in case of a conflict between the law made by Parliament and the state legislature.
Special status
However, even in this quasi-federal structure that leans more towards the Centre, not all states are equal. India’s plurality necessitates such an arrangement and the Constitution provides for differentiated equality for states depending on various factors, ranging from the fiscal, political and the administrative. However, an argument is made against asymmetric federalism, that the so-called special statuses sow seeds of regionalism and separatism and that it impacts ‘national integration.’
While Article 370, which formalised India’s relationship with the state of Jammu and Kashmir, is touted as the most obvious example of asymmetric federalism in India, there are several other states that enjoy varying degrees of autonomy and relationship with the Centre.
Not just Jammu and Kashmir
Right after Article 370, the Constitution creates special provisions for at least nine states, from Article 371A-I. All these exceptions are under a Section of the Constitution titled “Temporary, Transitional and Special Provisions”, which indicates that these provisions would be operable till the crisis — either secessionist sentiments or war — ceases. However, despite the “temporary” tag, none of the provisions contain an explicit expiry date.
Nagaland and Mizoram, for example, enjoy a negotiated autonomy which was a political compromise between India and the Naga and Mizoram independence movements. Under it, Parliament can make no law that interferes with religious and social practices of Nagas and Mizos, or with the ownership and transfer of its land and natural resources.
In the case of J&K, the petitioners challenging the Centre’s 2019 abrogation of Article 370 had argued that the special provision gives an element of internal sovereignty for the state which cannot be unilaterally taken away. However, a five-judge Constitution Bench of the Supreme Court, headed by Chief Justice of India DY Chandrachud, ruled on December 12 that Article 370 is only a feature of asymmetric federalism, which is not the same as having internal sovereignty.
There are concessions made to states for reasons other than political necessities. Take for example Delhi. Article 239AA prescribes for a unique arrangement for the administration of the national capital. It is not a state under the First Schedule to the Constitution, yet has the powers to legislate upon subjects in the state and concurrent lists in the Seventh Schedule.
