7.17 Special Provisions — Asymmetric Federalism

The most extra-ordinary feature of the federal arrangement created in India is that many States get a differential treatment. We have already noted that the size and population of each State being different, an asymmetrical representation is provided in the Rajya Sabha. While ensuring minimum representation to each of the smaller States, this arrangement also ensures that larger States get more representation. In the case of division of powers, too, the Constitution provides a division of powers that is common to all the States. And yet, the Constitution carries some special provisions for some States given their peculiar social and historical circumstances. Most of these provisions pertain to the North Eastern States — Assam, Nagaland, Arunachal Pradesh, Mizoram, etc. — largely due to their sizeable indigenous tribal population with a distinct history and culture. Special provisions also exist for hilly States like Himachal Pradesh and other States like Andhra Pradesh, Goa, Gujarat, Maharashtra, Sikkim and Telangana.

7.17.1 Article 371 — Special Provisions for the North-East and Other States

Article 371 contains special provisions in the form of sub-articles for several States. The relevant sub-clauses are listed in the table below.

7.17.2 Scheduled Areas and the Sixth Schedule

For tribal-majority districts in Assam, Meghalaya, Tripura and Mizoram, the Sixth Schedule creates Autonomous District Councils and Regional Councils with their own legislative, executive and judicial powers over land, forest, marriage, social customs and the management of resources. Similarly, the Fifth Schedule creates Scheduled Areas in other States with significant tribal populations and protects their land rights. The opening NCERT exercise refers to the Sixth Schedule status given to the Darjeeling Gorkha Hill Council in West Bengal — a contemporary example of how this provision is used to extend autonomy to a sub-State region.

7.18 The Story of Jammu and Kashmir — Article 370 and Its Abrogation

The other State that had a special status was Jammu and Kashmir (J&K) under Article 370^?. J&K was one of the large princely states that had the option of joining India or Pakistan or remaining independent. However, immediately after independence, in October 1947, Pakistan sent tribal infiltrators from its side to capture Kashmir. This forced Maharaja Hari Singh to ask for Indian help and accede to the Indian Union by signing the Instrument of Accession.

Many of the Muslim-majority areas in the Western and Eastern parts (which became West and East Pakistan) joined Pakistan, but J&K was an exception. Under these circumstances, J&K was given much greater autonomy by the Constitution. According to Article 370, the concurrence of the State was required for making any laws on matters mentioned in the Union and Concurrent Lists. This was different from the position of other States. In the case of other States, the division of powers as listed through three Lists automatically applied. In the case of J&K, the central government had only limited powers; other powers listed in the Union List and Concurrent List could be used only with the consent of the State government. This gave greater autonomy to J&K.

Earlier, there was a constitutional provision that allowed the President, with the concurrence of the State government, to specify which parts of the Union List should apply to the State. The President had issued two Constitutional Orders in concurrence with the government of J&K, making large parts of the Constitution applicable to the State. As a result, though J&K had a separate constitution and a flag, Parliament's power to make laws on subjects in the Union List was fully accepted.

7.18.1 Reorganisation of 2019

At present, the special status given under Article 370 no longer exists. By the Jammu and Kashmir Reorganisation Act, 2019, the State has been bifurcated into two Union Territories — (i) Jammu and Kashmir (with a Legislative Assembly) and (ii) Ladakh (without a Legislative Assembly). The new arrangement came into effect from 31 October 2019.

7.19 Conflicts in India's Federal System

The Constitution recognises the separate identity of the regions and yet gives more powers to the centre. Once the principle of identity of the State is accepted, it is quite natural that the States would expect a greater role and powers in the governance of the State and the country as a whole. From time to time, States have demanded greater autonomy. While the legal disputes between the centre and the States can be resolved by the judiciary, demands for autonomy are political in nature and need to be resolved through negotiations.

7.19.1 Centre–State Relations Across Three Eras

7.19.2 Demands for Autonomy — Four Strands

From time to time, many States and political parties have demanded that States should have more autonomy vis-à-vis the central government. However, ‘autonomy’ means different things for different States and parties. Four strands recur in the Indian autonomy debate.

7.20 Role of Governors and President's Rule

The role of Governors has always been a controversial issue between the States and the central government. The Governor is not an elected office-holder. Many Governors have been retired military officers, civil servants or politicians. The Governor is appointed by the central government, and therefore, actions of the Governor are often viewed as interference by the central government in the functioning of the State government. When two different parties are in power at the centre and the State, the role of the Governor becomes even more controversial.

7.20.1 Article 356 — The Most Controversial Provision

One of the most controversial articles in the Constitution is Article 356, which provides for President's Rule^? in any State. This provision applies when “a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.” It results in the takeover of the State government by the Union government. The President's proclamation has to be ratified by Parliament. President's Rule can be extended for up to three years. The Governor has the power to recommend the dismissal of the State government and the suspension or dissolution of the State Assembly.

This has led to many conflicts. In some cases, State governments were dismissed even when they had a majority in the legislature, as happened in Kerala in 1959, or without testing their majority, as happened in several other States after 1967. Some cases went to the Supreme Court, and the Court has ruled that the constitutional validity of the decision to impose President's Rule can be examined by the judiciary — the most famous ruling being the S. R. Bommai v. Union of India case of 1994.

7.20.2 Punchhi Commission — 2007

The Punchhi Commission was constituted in 2007 (chaired by former Chief Justice M. M. Punchhi) to review the working of centre–State relations in the changed circumstances of coalition politics, liberalisation of the economy, and growing demands for autonomy. Its report (2010) recommended:

• fixed tenure of five years for Governors and removal only for proven misconduct on a clear procedure;
• local emergency — allow President's Rule in a part of a State rather than the whole State, where suitable;
• constitutional amendments to clarify residuary taxation matters;
• establishment of a permanent Inter-State Trade and Commerce Commission;
• reactivation of the Inter-State Council under Article 263 to be used as a regular forum for dialogue.

7.21 Demands for New States and Inter-State Conflicts

The other dimension of tension in our federal system has been the demand to create new States. The national movement not only created a pan-Indian national unity, it also generated distinct unities around a common language, region and culture. Therefore, in the course of the national movement itself, it was decided that as far as possible, States would be created on the basis of common cultural and linguistic identity.

This led to the demand for the creation of linguistic States after Independence. In December 1953, the States Reorganisation Commission was set up; it recommended the creation of linguistic States, at least for major linguistic groups. In 1956, reorganisation of some States took place — the beginning of the creation of linguistic States. Gujarat and Maharashtra were created in 1960; Punjab and Haryana were separated from each other in 1966. Later, the North-Eastern region was reorganised and new States like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh were created. In 2000, three larger States were divided to create three new States — Chhattisgarh (from MP), Uttarakhand (from UP) and Jharkhand (from Bihar). In 2014, the State of Telangana was formed by dividing Andhra Pradesh. Some regions and linguistic groups are still struggling for separate Statehood — Vidarbha in Maharashtra is a current example.

7.21.1 Inter-State Disputes

While the States keep fighting with the centre over autonomy and other issues like the share in revenue resources, there have been many instances of disputes between two States or among more than two States. Broadly, two types of disputes keep recurring — border disputes and river-water disputes.

7.22 Federalism in the Changing Political Landscape

Finally, since the 1990s, Congress dominance has largely ended and India has entered an era of coalition politics — especially at the centre. In the States too, different parties — both national and regional — have come to power. This has resulted in a greater say for the States, respect for diversity, and the beginning of a more mature federalism. It is in this second phase that the issue of autonomy became politically potent.

7.23 NCERT Exercises — Full Model Answers

7.24 Summary

7.25 Key Terms