NOTES
Is India a Case of
Asymmetrical Federalism?
Rekha Saxena
The Indian case of federalism has
“postmodern potential” in the
manner in which it has de facto
and de jure asymmetries in its
construction. Normatively, some
of the asymmetries have served
it well against opinion that these
could lead to secessionism.
Rekha Saxena (rekhasaxenadu@gmail.com) is
with the Department of Political Science at the
University of Delhi, New Delhi.
70
I
n strict and simple terms, asymmetri-
cal federalism means a flexible type of
union that grants special status to
some federative units in the Constitution.
While the term is novel, the idea is not
new as it has been implicit in constitutional
texts and the literature on federalism
since long (Burgess 2006: 209). More re-
cently, the term has also come to be ap-
plied to formulation of federal policies
that allows the federal government to
work out separate deals with different
states on matters of specific concerns to
them.1 A recent example in Canada is the
healthcare deal signed by all federal, pro-
vincial, and territorial premiers signed at
a marathon intergovernmental confer-
ence in September 2004. This agreement
allows for a separate bilateral Canada-
Quebec side deal. The deal is hailed as
a recognition of distinct status of Quebec
in the Canadian federation2 but such
a­rrangements are supposed to be under-
mining federal comity and national unity
(Brock 2008: 143-62).
This article purports to examine whether
India is a case of asymmetrical federalism.
I take up this issue as there is some d­­is­
agreement on this question. India’s a­­p­
proach to this problem is definitely
marked by ambivalence, which arises
from the question whether asymmetrical
federalism helps or hinders national inte-
gration. There is no easy and a priori an-
swer to this query. Hence, in what follows,
I first briefly discuss what has been the ex-
perience in comparative federal theory in
this regard. Then, in the rest of the essay,
I mainly deal with India’s pragmatic ap-
proach to constitutional and political
asymmetries in relation to some states
and tribal tracts in the north-east and some
mainline states. Constitutional asym-
metries characterise some border states in
the north-west and north-east, i e, Jammu
and Kashmir, Nagaland and Mizoram.
january 14, 2012  vol xlvii no 2  EPW   Economic & Political Weekly
Federal theory and practice in the age
of globalisation and regional integration
is at a crossroads. Klaus von Beyme has
made a perceptive observation about
asymmetrical federalism, which is of in-
terest here. In his view, older federalism in
the age of classical modernism relied on a
rational model of symmetric states with
liberal multicultural rights, whereas post-
modern federalism of multinational states
has become more tolerant of interstate
asymmetries in constitutional engineer-
ing (Beyme 2005: 432-47).
Concept of Asymmetry
The literature on the concept and theory of
asymmetrical federalism is replete with a
deeply divisive debate on the question
whether asymmetry in federal structuring
is a slippery terrain leading to s­ecession or
conducive to national unity. Most early
writings tended to take the former posi-
tion,3 whereas the recent comparative
treatment of the subject generally argues
that instead of being inherently secession-
ist in potential it can and has in fact helped
stave off of secession.
The earlier view was tainted by the
classical model of unitary nation state be-
queathed by the French Revolution and
that of the classical model of federal state
by the American War of Independence.
Both the French and the Americans, pre-
sumably in their revolutionary fervour
projected the ideal of a nation state or that
of a federal state respectively that was
based on symmetrical rule of law for all
citizens of the nation or for all units if the
federation premised on equality of liberty
and fraternity. The attitude also easily de-
veloped in the postcolonial nationalists,
who at the time of liberation from the colo-
nial rule reacted strongly against the impe-
rial divide-and-rule policy that played one
community and region against the other.
Thus the modern nationalists also dis-
played a strong suspicion against any
asymmetrical constitutional arrangement
for some territorial or ethnic communities
as against the others, thinking that it con-
tained the seeds of separatism. In fact, in
postcolonial south Asia the idea of feder­
alism itself was generally suspect for
state-nationalists who inherited power

from the departing colonial rulers and
d­esired to establish a strong nation state
in due course. This is illustrated by the
a­lmost total rejection of the federal idea as
such by Pakistan and Sri Lanka despite
their ethno-national diversities. India and
Nepal are the only examples of reluctant
federalists in this part of the world, taking
the evidence of the process of constitu-
tion-making in the two states. It took I­ndia
nearly half a century to develop some de-
gree of concession to asymmetrical feder-
alism, if at all.
The comparative political experience of
all multinational federations, with the
possible exception of Switzerland, sug-
gests that some degree of constitutional
asymmetry is essential for establishing
e­nduring federal unions in the contempo-
rary world today. India, Belgium, Canada
are cases in point in this context. These
are the major examples of reasonably
well-functioning asymmetrical federal
d­emocracies today. The Russian federation
is also multinational and constitutionally
asymmetrical, but then Russia has not yet
started working as a democratic federa-
tion in the strict sense of the term (Stepan
1999: 31).
John McGarry in a comprehensive com-
parative study of asymmetrical federal
e­xperiments in the 20th and early 21st
centuries has also come to the conclusion
that asymmetrical federalism per se does
not lead to secession. Whether unity or
s­ecession will be the outcome depends on
the contingent political factors as to how
such a constitution is actually worked by
the political leadership and other contex-
tual factors. To quote McGarry (2005: 17),
I have argued that, contrary to the fears of
state-nationalists, or integrationists, there
is little evidence that asymmetry promotes
break-up. Indeed, virtually all cases of seces-
sion in the twentieth century have occurred
from unitary states, or from democratising
federations that were centralised from much
of their history and that were essentially
symmetrical in nature. Asymmetrical fed-
eralism may be associated with instability
and illiberalism in certain limited contexts,
but there is nothing inherently unstable or
illiberal about it. Rather, much depends on
context, on motivations of the parties in-
volved, and in the details of the autonomy
arrangements.
Charles Tarlton who is credited with
having coined the term asymmetrical
Economic & Political Weekly  EPW   january 14, 2012  vol xlvii no 2
f­ederalism in 1965 takes a dismissive view
of it, as for him, it is prone to secessionism
(1965:873). The Canadian experience with
the Quebec question has brought about a
bit of turnaround in the theoretical appre-
ciation of asymmetrical federalism as
asymmetry was impliedly built into the
federal constitution-making in Canada in
1867 (without using the term) and the tra-
jectory of the federalist and sovereignist
debate has brought to the fore the accom-
modative potential of the device.4 Federal
experiments elsewhere have supported
this line of argument i­ncluding the Indian
case (Stepan 2004). Michael Burgess
(2006: 209-25) makes a more balanced
theoretical statement by suggesting that
the accommodative or s­ecessionist poten-
tials of asymmetrical federal arrange-
ments actually depend on specific cultural
and historical contexts. A flat a priori as-
sertion cannot be made in this regard.
The Indian Experience
Ronald Watts (2008: 127) makes a theo-
retically fruitful distinction between
p­olitical asymmetry which exists in every
federation as to the geographical and de-
mographic sizes of the units and constitu-
tional asymmetry which “refers specifi-
cally to differences in the status or legisla-
tive 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
the United States of America but on the
basis of their population.5 Thus, the state
of Uttar Pradesh has 31 seats whereas
states from the north-east (such as Megha-
laya, Mizoram, Manipur) and Pondicherry
and Goa have just one seat each in the
R­ajya Sabha. The literature on Indian
feder­alism has recently been applying the
concept of constitutional asymmetry under
which the states of Jammu and Kashmir,
Nagaland, and Mizoram enjoy certain spe-
cial position and powers in the Constitution
not enjoyed by others. Jammu and Kash-
mir has a constitution of its own drafted
by the constituent assembly of the state
and adopted in 1957, though its provisions
broadly conform to the Constitution of
I­ndia with regard to the structure of the
NOTES
government and the fundamental rights
of the citizens. Article 370 (bii) limited the
power of the Parliament to make laws for
the state of Jammu and Kashmir to for-
eign affairs, defence and communications
as specified in the Instrument of Accession
by dint of which the state joined the Union
of India in October 1948. Parliament’s
laws on subjects in the union and concur-
rent lists would not automatically be valid
in the state unless the president of India in
concurrence with the state government
declared them applicable to the state.
Similarly Article 371 A and E provide that
a parliamentary statute to be extended to
the states of Nagaland and Mizoram re-
quire 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 pro-
cedures, administration of civil and crimi-
nal justice affecting these customary
laws, and ownership and transfer of land
r­esources of these states. The above articles
also stipulate that the legislative assem-
blies of Nagaland and Mizoram shall con-
sist of not less than 46 and 40 members
respectively. Moreover, Article 371 A gives
the governor of Nagaland
some special responsibility with respect to
law and order in the state of Nagaland for so
long as in his opinion internal disturbances
occurring in the Naga Hills-Tuensang area
immediately before the formation of that
state continue….
Besides these asymmetries at the state
level, there are some sub-state asym-
metries in the Indian Constitution that
may be synoptically noted here. Indian
federalism relates to a special kind of fed-
erating units that are called the union ter-
ritories (UTs). The seven UTs have been
created at various points in time. The rea-
sons for their creation were varied. These
areas were either too small to be states or
too difficult to merge with neighbouring
states on account of cultural differences,
interstate disputes, specific needs of the
National Capital Territory, or far-flung
i­solated location on the coasts. Origi­nally,
they were all administered directly by
the union through a centrally appointed
admini­strator. None of these had a legis-
lature but all were represented by at
least one seat in the lower house of Parlia-
ment. Parliament can either extend the
71
NOTES

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72 january 14, 2012  vol xlvii no 2  EPW   Economic & Political Weekly

jurisdiction of the high court of a neigh-
bouring state to such territories or create a
separate high court for it (Article 241[1]
and [4]).
Subsequently, two new types of UTs
were created, namely, Pondicherry (14th
Amendment Act 1962) and Delhi (69th
Amendment Act 1991). A common feature
of these two territories is that they have
been granted unicameral legislatures
whose members are directly elected by
the people. The Pondicherry legislature is
partly elected and partly nominated.
There is also a council of ministers res­
ponsible to the legislature in both the
t­erritories. The head of the state in both
Delhi and Pondicherry is a lieutenant gov-
ernor appointed by the union to perform
formal executive functions of the govern-
ment. Both the territories also have gov-
ernments headed by chief ministers ac-
countable to their respective legislatures.
However, the chief minister of Delhi is
a­ppointed by the president of India on the
recommendation of the lieutenant gover-
nor. This is presumably in view of the fact
that Delhi is in the National Capital Terri-
tory. The legislature of Delhi enjoys only
concurrent jurisdiction as in the case of
conflict in regard to laws made by it and
those made by Parliament, the latter pre-
vails. Pondicherry is represented by one
seat each in the Lok Sabha and R­ajya Sab-
ha. Delhi has seven Lok Sabha and three
Rajya Sabha seats. Despite b­eing called a
state, Delhi is really a semi-state as some
vital subjects like land, p­olice and civil
services are vested in the union govern-
ment. The Government of Delhi enjoys
only concurrent jurisdiction in other sub-
jects. Hence, there has been a long-stand-
ing demand of full statehood for Delhi. In
the case of Pondicherry, land, p­olice and
civil services are under the j­urisdiction of
the state government.
Specific Asymmetries
First, there are specific asymmetries with
regard to administration of tribal a­reas,
intra-state regional disparities, law and
order situation and fixation of number of
seats in legislative assemblies in relation
to states of Maharashtra, Gujarat, A­ssam,
Manipur, Andhra Pradesh, Sikkim, Aru-
nachal Pradesh and Goa in the Constitu-
tion of India.6 Second, the governors of
Economic & Political Weekly  EPW   january 14, 2012  vol xlvii no 2
M­aharashtra and Gujarat have a “special
r­esponsibility” for the establishment of
separate development boards for certain
backward regions of these states with
e­quitable allocation of development funds
and provision of facilities for technical
e­ducation, vocation training and employ-
ment opportunities. Third, the president
of India is under the constitutional obliga-
tion to ensure the setting up of a commit-
tee of the legislative assembly in the states
of Assam and Manipur consisting of mem-
bers elected from tribal/hill areas to look
after the welfare of those communities.
Fourth, the president of India is to ensure
“equitable opportunities and facilities” for
the people in different regions of Andhra
Pradesh in respect of public employment
and education and the establishment of a
central university in the state. Fifth, the
legislative assemblies of Sikkim and Goa
“shall consist of not less than 30 mem-
bers”. The governor of Sikkim is under
certain “special responsibility for peace
and for an equitable arrangement for
e­nsuring the social and economic advance-
ment of different sections of population”
of the state. Sixth, the governor of Aru-
nachal Pradesh has “special responsibility
with respect to law and order” and to act
in his “individual judgment” after consult-
ing the council of ministers.
An observer of the Fifth and Sixth
Schedules of the Constitution has found
some aberrations in these institutions but
has concluded that
the constitutional protection to the minori-
ties and other deprived groups has enabled
the state to accommodate diversity in a
meaningful way…. [and] sustained the plu-
ral character of India and its rich cultural
mosaic over the five decades of constitutional
mode of notion building (Suresh 2009: 57).
In the debate in federal theory as well
as in the context of its application to India
regarding its impact on the working of
federal systems in practice, Tarlton be-
lieves that asymmetrical federal arrange-
ments are fraught with separatist and
s­ecessionist potential, whereas Barry is
critical of them due to the creation of two
classes of citizenships, one for nationality-
based units and the other for merely re-
gional units. On the other hand, Kymlicka,
Taylor, Requejo, Gagnon and Gibb argue
that constitutional asymmetrical status
NOTES
is equitable and necessary for countries
that are not merely multicultural but are
multi­national for the protection of com-
munity or minority rights in the context of
identity politics of recognition (Tillin 2007:
1-25). Stepan contrasts India’s “demos-­
enabling” (e g, Article 3 of the Constitu-
tion empowering Parliament the power to
reorganise states) asymmetrical federal
model from the “demos-constraining”
(e g, separation of powers and checks and
balances) symmetrical models of federal-
ism, and credits the former for its tackling
of the multiple linguistic nationalism, es-
pecially Tamil separatism (ibid: 58-61).
However, Tillin correctly argues that
I­ndia’s linguistic reorganisation, including
the Tamil case, was an exercise in sym-
metrical arrangement on closer examina-
tion. Nevertheless, Tillin’s argument is
more convincing in relation to the regional
languages (including Hindi, the regional
language in 10 out of 28 states) that were
accorded equal status in regional or state
governments. But Hindi and English
were/are still accorded a special status as
co-official languages of the union govern-
ment as India’s lingua franca, even if it
was a climbdown for Hindi that was to be-
come the sole “official language” of the
union of India from 1965 under the Consti-
tution 15 years after its commencement in
1950. Moreover, T­illin goes on to argue
that Article 370 regarding Jammu and
Kashmir was included in the constitution
in Part XXI under the caption “Temporary,
Transitional and Special Provisions”. Im-
portantly, it was neither included in rec-
ognition to the state’s “distinct”, Muslim-
majority status to embed corresponding
group rights nor intended as a challenge
to India’s composite and equal vision of
territorial nationhood inclusive of all reli-
gions, languages, and ethnic groups.
To Tillin, India’s north-eastern states
come closest to de jure asymmetrical feder-
alism. Yet, she turns around and tries to
show that these states “are perhaps better
seen as ‘peripheral’ units within India” and
approvingly quotes Watts who says “these
relationships are quite distinct from those
of the main body of constituent units within
the major p­olitical entity” (ibid: 52-58).
Though it is an interesting line of argu-
ment I think many may find it difficult to
accept it at least in constitutional law. As
73
NOTES
r­egards Jammu and Kashmir, whatever the
intent and theory of the Indian Constitution,
Article 370 has survived to date and may
well be the basis of a final settlement with
modifications, taking “the I­ndian federation
into new constitutional waters” (ibid: 62).
About the north-east, Tillin cites Sanjib
Baruah saying that it was India’s reluc-
tance to apply asymmetrical solutions to
the composite state of Assam that con-
strained Assam’s ability to constructively
negotiate with ethnic Bengalis and tribals
to accommodate them in a composite
state. In any case, the north-eastern asym-
metrical deals are dismissed as marginal
features out of the mainstream.
One may give a different interpretation
than the one summed up above by Tillin.
What actually matters in the case of Jammu
and Kashmir is not what was intended
by the Indian nationalists at the time of
I­ndependence and constitution-making
but what has actually come to exist for
over half a century and does not seem to
be changing either nationally or inter­
nationally in the foreseeable future. The
autonomy to the Jammu and Kashmir
u­nder Article 370 has survived the changes
of regimes both in New Delhi and in Jammu
and Kashmir. The non-fulfilment of the
UN Resolution is due more to the fait
a­ccompli perpetrated by Pakistan in the
territory occupied by it where no such
elections have ever been held. Moreover,
Pakistan ceded a part of the Occupied
Kashmir in Akshai Chin to China to com-
plicate the bilateral question into trilateral
one, without any reference to the people
of the blighted state. The kind of federal
autonomy that the state of Jammu and
Kashmir has enjoyed in the union of India
on the basis of democratic elections and
federal arrangements in the state may
well be the foundation on which some sort
of “cosmopolitan democracy” (a la David
Held 2002: 313-20) across the Line of Con-
trol (LOC) may well be built up in due
course if the peace process under way for
the last decade or so bears fruit.
So far as the north-eastern asymmetries
are concerned, one may ask the question if
their nature is altered because it is India
that has struck those deals rather than the
federative composite state of Assam. I
would like to add that union of India’s
asymmetrical deals with Nagaland and
74
Mizoram were made by the 13th constitu- autonomous institutional arrangements
tional amendment (1962) and the 53rd for v­arious tribal regions and tribal com-
constitutional amendment (1986), both munities. Less far going asymmetrical de-
years after the deal with Jammu and vices are contained in the Fifth Schedule
Kashmir. It may well be argued that Jammu of the Constitution relating to tribal com-
and Kashmir served as a precedent to in- munities in states where they are placed in
corporate other asymmetrical arrange- a demographically more composite states.
ments in the Constitution of India in the Another notable point is that Article 1 of
north-east. North-east is the only genuine the Constitution projects the vision of a
political region of the country with the federal union of states and territories. It
north-eastern council set up under a par- is subsequently supplemented by a variety
liamentary statute, a trend which may of territorial and ethnic autonomies accor­
well catch on in the rest of the country ded to linguistic, religious, and tribal
with the pattern of regionalisation in m­inorities. Looked at from the prisms of
I­ndian politics. liberal individual fundamental rights and
cultural communitarian rights, it would
Concluding Observations not be entirely misplaced to argue that in
Summing up, to discerning eyes, India is a significant sense, India could be inter-
replete with de jure and de facto asym- preted as a case of ethnic federalism, at
metries. In the first place, the Constitution least in parts.
of India, if studied closely, would appear Furthermore, there are some glaring
to be a federation with postmodern examples of de facto asymmetries in the
p­otential and that instead of one uniform Indian political system. The 10 states of
federative principle, there are numerous, the Hindi heartland are both territorially
as the foregoing discussion has shown. To and demographically huge. UP in particu-
clarify, these are not postmodern features lar dominated federal politics like a colos-
for the simple reason that the parts of sus until the end of the 1980s contributing
I­ndia that are treated asymmetrically are eight prime ministers out of 13 so far. This
far from post-industrial structures and de facto domination, however, has come
post-material values. If anything, they to be challenged in the era of the multi-
are pre-industrial and traditionally pre-­ party system and coalition governments
material, if at all or in any sense. Hence, when the non-Hindi rimland states have
the term postmodern potential, rather “coalitionally” come to dominate federal
than postmodern per se. Constitutional politics since 1989. However, another de
asymmetries are evident in the cases of facto asymmetry has crept in the system
the states of Jammu and Kashmir, Naga- of representation in Parliament that may
land, and Mizoram. In the case of UTs, the be a cause of serious conflict in the future.
two asymmetrical units are National Capi- The decennial interstate delimitation of
tal Territory of Delhi and Pondicherry. constituencies mandated by the Constitu-
Only these two units could have some pre- tion was incrementally postponed until
tentions of transition to postmodernity. 2025 by a constitutional amendment.
Sub-state asymmetries are particularly A­ccording to an estimate by a demo­
marked in the Sixth Schedule of the Con- grapher, if delimitation was done today,
stitution which provides for a variety of south Indian states will have to surrender
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january 14, 2012  vol xlvii no 2  EPW   Economic & Political Weekly

about 15 Lok Sabha seats to their north
I­ndian counterparts (Bose 2000: 1698-1700).
The union of India, despite the Partition
of 1947, continues to be territorially large
and culturally composite and complex.
The Hindi heartland is multicultural in
composition while the north-east and the
north-west as well as the de jure as well as
de facto asymmetries may make Indian
federalism inflexible, yet they represent
the search for consensus among the elites
and the masses. They may undermine a
particular vision of nationalism, but they
have served the Indian federal union and
composite nationalism well.
Notes
1 The Royal Society of Canada, “Who’s Afraid of
Asymmetrical Federalism?”, Internet http://
www.rsc.ca/print:php?long_id=1 & page_id=196,
accessed on 25/2/2009
2 For example, the open letter of Benoit Pelletier, Que-
bec’s minister of intergovernmental and aboriginal
affairs in The Globe and Mail, 8 November 2004.
3 For a review of these works, see Beyme (2005:46);
and McGarry (2005: 5-6), Singh (2011).
4 See Kymlicka (2001 and 2002), Taylor (1991).
5 Articles 4 [1] and 80 [2] read with the Fourth
Schedule.
Plenty of media,
Zero accountability.
Who will turn the spotlight on the Media?
Regional Media  Media and Conflict  Media Ethics
Media Books and Research  Media and Gender  Online Media
Community Media  Media Activism  Columns
Economic & Political Weekly  EPW   january 14, 2012  vol xlvii no 2
6 Article 371, 371B, 371C, 371D, 371E, 371F, 371H and
371 I. On this theme also see Arora (2010), Suan
(2011: 34).
References
Arora, Balveer (2010): “The Indian Republic: Redefin-
ing Diversity” in Luis Moreno and Cesar Colino
(ed.), Diversity and Unity in Federal Countries
(Montreal and Kingston: McGill Queen’s Univer-
sity Press).
Beyme, Klaus von (2005): “Asymmetrical Federalism
between Globalisation and Regionalisation”,
Journal of European Public Policy, Vol 12, Issue 3,
June.
Bose, Ashish (2000): “North-South Divide in India’s
Demographic Seene”, Economic & Political Week-
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