Asymmetric Federalism in India: Issues Emerging in Case Law
By: Niharika Mukherjee* |
This article shall examine asymmetric federalism in the Indian context, focusing specifically on the role of Supreme Court decisions in this regard. In particular, it shall rely upon six judgements on asymmetric federalism concerning Jammu and Kashmir and seven judgements on Telangana, reflected in Articles 370 and 371D, respectively, of the Indian Constitution. This analysis shall proceed with the aim of understanding in what way asymmetrical federalism has reflected in the reasoning pronounced in these cases, and the issues resulting therewith.
First, it shall outline the theoretical tenets of asymmetrical federalism and the forms it takes in the Indian context. Secondly, it shall discuss judgements in relation to Article 370, followed by those on Article 371D, and note the challenges brought forth by these. Finally, it shall present its conclusions on asymmetrical federalism jurisprudence in India and discuss its propositions for how it can be improved in terms of its underlying principles and coherence.
Broadly, asymmetrical federalism describes a federal framework with sub-units possessing unequal powers and rights. A common feature of states with diversity in culture, ethnicity and language, among other factors, asymmetrical federalism often has both de facto and de jure manifestations. The former refers to actual differences in factors including wealth and population size among federal units. The latter refers to legal, often constitutional, devices adopted to create unequal rights.
Regarding its ends, asymmetrical federalism has been justified both normatively and functionally. Normative justifications argue that it is valuable for its ability to solidify a ‘politics of recognition', by accommodating group-based heterogeneity among citizens, particularly those with disadvantage or in the minority. On the other hand, functional justifications justify it as a vital instrument for sustaining a multicultural federation in the long run and are less concerned with its moral implications.
Both de facto and de jure devices of asymmetrical federalism are seen in India, the latter being the concern of this paper.
De jure devices of asymmetrical federalism in the Indian Constitution vary widely in their objectives and nature. They range from ‘strong-form’ asymmetrical provisions, which go as far as to grant greater autonomy to some States on account of their historical circumstances and population characteristics, to ‘soft-form’ provisions for affirmative action in disadvantaged regions. Article 370, for instance, in providing for greater political autonomy for Jammu and Kashmir, belongs mainly to the former category, and Article 371D, which was introduced to correct intra-State inequities in the region of Telangana, in the formerly unified State of Andhra Pradesh, belongs to the second category.
While de jure devices of asymmetry are numerous in India, it has been argued that the dynamic management of ‘competing group claims’ is better left to political processes. Yet, concerns persist regarding the disproportionate influence of different states on the legislature due to population-based representation and partisan political interests dominating the realities of asymmetrical federalism. This has led some to argue that the ‘effective long-term operation’ of these devices must find protection in their Constitutional status, to prevent their erosion by political processes. In this light, the role performed by the Supreme Court in developing this facet of the Constitutional framework acquires significance.
Asymmetrical Federalism and Article 370 Jurisprudence
After initial clarity regarding the importance of the Constituent Assembly of the State of Jammu and Kashmir in restricting the powers of the Indian Parliament and President under Article 370(1), a series of contentious questions in relation to this power was brought before the Court.
The first was considered in 1962 when a petition challenged an order made by the President under Article 370(1), which provided that the representatives of the State to the Lok Sabha would be chosen not by direct election, but by nomination by the President on the recommendation of the State legislature. The challenge was levelled on the grounds that the power to ‘modify’ a constitutional provision in its application to the State, which the President derived from Article 370(1)(d), did not include ‘radical alteration’ of the type made through the impugned order. The Court held otherwise, stating that the power should be accorded the ‘widest possible amplitude’. No justification apart from a purely textual one was noted, besides a reference to the fact that Article 370 clearly recognized the State's special status, and ‘that [was] why’ the President was given these powers.
This broad reading of Presidential powers was echoed in two judgements that followed. In 1969, the court had the occasion to consider, inter alia, two questions- first, whether the powers granted under Article 370(1) ceased to be in operation after the dissolution of the Constituent Assembly of the State as its recommendation was necessary for repealing or modifying the Article; secondly, whether an order infringing a fundamental right could be validly passed under this provision. On the first question, the Court responded in the negative, holding that the Article had never ceased to be operative as the Constituent Assembly of the State had not made such a recommendation to the President before its dissolution. Therefore, it held the necessity in Article 370(3) for the State Constituent Assembly’s recommendation redundant after its dissolution.
On the second question, the Court affirmed the constitutionality of the order despite it infringing fundamental rights under Article 22 of the Indian Constitution, on the grounds that it drew immunity from Article 35(c) in the Constitution (Application to Jammu and Kashmir) Order, 1954. In doing so, it did not comment upon the constitutionality- or even moral, human consequences- of the exception created in Article 35(c) and its extensions in themselves, which had, for 15 years, granted immunity to preventive detention laws in the State from Article 22 scrutiny. On the contrary, it observed that such exceptions were facially justified by the ‘exceptional state of affairs which continued to exist as before’.
Closely after, the court in 1972 considered whether approval to a Constitutional amendment by the Governor of the State could be validly construed to have the same effect as that by the Sadr-i-Riyasat. The Court decided in the affirmative, on the grounds that the reference to the Sadr-i-Riyasat, following the abolition of the post in 1965, had become redundant, and the Governor was the successor to the Sadr-i-Riyasat. Expressly disregarding the petitioner’s argument that the mode of abolition, which implied a modification to Article 370, itself was the subject of contention as it had allegedly been made in violation of Article 370(3), the Court stated that it was merely concerned with a situation where the post had already been abolished. Apart from this logical fallacy, the Court also failed to address the broader implications of substituting an elected Head of State with one nominated by the Union government.
More recently, the Court made explicit a particular judicial perception of Jammu and Kashmir-related asymmetry which has arguably long been, implicitly, a factor influencing its earlier decisions. This was expressed in its discomfort with the proposition that the Constitutions of India and of Jammu and Kashmir had ‘equal status’, and its remark that the High Court’s references to the State's sovereign powers were ‘disturbing’.
From this line of cases, four main issues are apparent.
The Court has, on multiple occasions, allowed mechanisms restricting the powers of the President under Article 370 to be limited, by legitimating the substitution of asymmetric federalism mechanisms which provided greater democratic rights to the people of the State, with those which derived from the powers of the Union.
It has pronounced these decisions with no inquiry as to whether laws made in the exercise of powers granted by asymmetric federalism-based constitutional provisions have been in consonance with fundamental rights, taking them as a fait accompli even where they have themselves been the subject of contention.
It has made frequent references to the exceptional circumstances prevailing in the State in the way of justification for the continued operation of the asymmetric provisions, without elaboration on the nature of these circumstances.
It has both expressly and impliedly demonstrated discomfort with the idea of increased autonomy of the State, allowing for wide-ranging Union powers over it.
While these yield serious implications for asymmetric federalism jurisprudence in India, a potential counter-argument to these conclusions could be that the particular motivations with which Article 370 was enacted were purely functional in nature, as defined earlier, rather than normative. An acceptance of such functional justification for the asymmetric provision by the Court could justify, at least partially, its reluctance to subject related petitions to rigorous scrutiny in terms of other constitutional safeguards.
To examine if such a justification may hold for the Court’s treatment of asymmetrical federalism provisions more generally, this paper shall now consider a different example. In particular, it shall consider an asymmetrical federalism provision that was enacted not purely for functional reasons, but to reduce intra-State regional disparities. It is emphasized that this may be understood as a normatively sound motive yielding relatively fewer concerns for the integrity of the Union.
Asymmetrical Federalism and Article 371D Jurisprudence
The Court’s decisions on asymmetrical federalism in relation to Telangana may be analyzed in three broad categories.
First, prior to the enactment of Article 371D, the Court initially expressed a reluctance to consider asymmetric federalism involving intra-state regions as constitutional, justifying this through a purely textual interpretation of Article 16(3) of the Constitution.
However, 5 years later, the court departed from this aversion. In 1973, holding that the Mulki Rules related to reservations in public employment in Telangana had not been repealed by statute, it validated this intra-state asymmetry, which is considered to be protected by Article 35(b) of the Constitution. The reasoning of the court was strongly purposive, as its reliance on Parliamentary intent was at the expense of disregarding a purely textual construction. A purely textual construction, here, may have held that the express repeal of the Mulki Rules by the Parliament could well have excluded these from the protection of Article 35(b), but this was precluded by the Court’s conclusions on severability in this case, no doubt based on a purposive interpretation. Further, it used references to the historical and political context of the asymmetries in relation to Telangana to substantiate its purposive interpretation.
In the second category, following the replacement of the earlier provisions in Article 371(1) with Article 371D, the Court has generally taken a position that protects the asymmetric rights of disadvantaged areas from the powers of the State government. In 1987, for instance, it struck down Article 371D (5), which had allowed the State Government of Andhra Pradesh to modify the orders of an Administrative Tribunal established to improve the implementation of asymmetric rights in public employment for residents in such areas. In the same vein, it has favored a narrow construction of the departures that the State government could make from according such privileges, on grounds of administrative efficiency.
In the third category, the Court has encountered problems arising from two competing asymmetric federalism provisions. Faced with non-obstante clauses in both Article 371D and Article 5(1) of the Fifth Schedule, the court ruled that the Governor of Andhra Pradesh could not issue an order in conflict with a Presidential Order made under Article 371D, notwithstanding the non-obstante clause in the Fifth Schedule. This has led some commentators to argue that the Court privileged Article 371D asymmetry to the detriment of the asymmetric benefits provided by the Fifth Schedule.
The main observation that emerges from these cases is that following the introduction of a constitutional provision to this end, the Court has on multiple occasions interpreted laws purposively to give effect to asymmetric federalism measures for rectifying regional disparities.
The discussion above has revealed several inconsistencies and challenges in the reasoning adopted by courts on asymmetrical federalism questions. In this light, some scholars have argued that courts have been unable to formulate cohesive doctrine in this area. While suggestions for such doctrinal development have highlighted the need to use a ‘state-nation’ framework to better understand Indian federalism, as opposed to conventional ‘nation-state’ theories, this paper concludes that such developments must also consider several other factors. In particular, it proposes that judicial reasoning in cases related to asymmetrical federalism must address four broad questions:
First, what normative and functional rationales inform the court’s understanding of different asymmetric federalism provisions, and how may they be harmonized with the wider constitutional framework in India?
Secondly, should courts construe asymmetrical provisions granting greater powers and rights to States or sub-State units more widely than those restricting these in favor of the Union government?
Thirdly, to what extent can asymmetrical federalism justify the infringement of fundamental rights, and how must rationales in this regard be scrutinized?
Lastly, when two different grounds for asymmetry are in conflict, how are these competing considerations to be weighed?
The court’s reasoning in the cases examined in this paper reveal little elaboration on the first question. To the second question, decisions on Article 371D appear to have responded in the affirmative, while those on Article 370 have taken a clearly contrary position. The absence of reasoning on the third question in the case of Article 370 has evoked considerable criticism, as has, albeit to a less prominent degree, similar absence in the final question about Article 371D. While it is, in the final analysis, difficult to answer any of these questions conclusively, addressing these questions through the judicial lens, it is believed, shall lay the foundations for a clear, consistent and rights-respecting asymmetrical federalism framework in India.
*The author is a student at the National Law School of India University, Bengaluru.
 Louise Tillin, ‘Asymmetrical Federalism’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 572.
 Rekha Saxena, ‘Is India a Case of Asymmetrical Federalism? 47 Economic and Political Weekly 2 71.
 Ibid 71.
 Louise Tillin, ‘United in Diversity? Asymmetry in Indian Federalism’ (2007) 37 Publius 1 48.
 Ibid 48.
 Ibid 49.
 Saxena (n 2) 70.
 Sudhir Krishnaswamy, ‘Constitutional Federalism in the Indian Supreme Court’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015) 366.
 Tillin (n 1) 572.
 Krishnaswamy (n 8) 379.
 Krishnaswamy (n 8) 369.
 Tillin (n 1) 575.
 Rekha Saxena and Wilfried Swenden, ‘The Indian Supreme Court and Federalism’ (2018) 17 Fédéralisme Régionalisme 7 9.
 Prem Nath Kaul v State of Jammu and Kashmir AIR 1959 SC 749 para 35.
 Puranlal Lakhanpal v President of India and Ors AIR 1961 SC 1519 para 1.
 Ibid para 1.
 Ibid para 4.
 Ibid para 2.
 Sampat Prakash v State of Jammu and Kashmir and Anr AIR 1970 SC 1118 para 4 and 15.
 Ibid para 7.
 Ibid para 15.
 Ibid para 15.
 Mohd Maqbool Damnoo v State of Jammu and Kashmir (1972) 1 SCC 536 para 6.
 Ibid para 24.
 Ibid para 24.
 Ibid para 26.
 State Bank of India v Santosh Gupta and Anr 2017 AIR SC 25.
 Ibid para 41.
 Tillin (n 1) 578.
 Tillin (n 4) 50.
 AVS Narasimha Rao and Ors v The State of Andhra Pradesh and Anr 1969 (1) SCC 839 para 9.
 The Director of Industries and Commerce, Government of Andhra Pradesh and Anr v V Venkata Reddy and Ors (1973) 1 SCC 99.
 Ibid para 17.
 Ibid para 30.
 Ibid para 3 to 8.
 P Sambamurthy and Ors v State of Andhra Pradesh and Anr (1987) 1 SCC 362 para 3.
 V Jagannadha Rao v State of AP and Ors (2001) 10 SCC 401 para 21.
 Chebrolu Leela Prasad Rao and Ors v State of AP and Ors 2020 SCC Online SC 383 para 80.
 Chaitanya Singh, ‘Inconsistency in Chebrolu Prasad v State of AP: Scheduled Areas and Asymmetric Federalism’ (2021) 1 The Criminal and Constitutional Law Journal 1 6.
 Tillin (n 1) 584.
 Krishnaswamy (n 8) 380.
 Ibid 355.
 Tillin (n 4) 48.
 Singh (n 39) 6.