Power Dispersed: Asymmetric Federalism and Constitutional Pluralism under the Indian Constitution

Abstract

This chapter will study the troubled history of asymmetric federalism in India. It will begin with a historical overview of the debates in the Constituent Assembly about the character of the nascent Indian State, and how these debates contributed towards the shaping of the Constitution as a terrain of contestation on the issue of asymmetric federalism (I). It will then consider the exemplar of Jammu and Kashmir, noting the historical origins of Article 370, and its early career alongside the workings of another historically unique body, the Constituent Assembly of Jammu and Kashmir. It will argue that through two “inflection point” judgments in the 1960s and 70s – Sampat Prakash and Mohd Maqbool Damnoo – the Indian Supreme Court interpreted the silences and ambiguities in Article 370 in a manner that strengthened Union power, and weakened asymmetric federalism under the Constitution; and that finally, there is a direct road from the Court’s interpretation of Article 370, to its effective abrogation in August 2019 (II).

The chapter will go on to examine asymmetric federalism in two other contexts within the Indian Constitution. At the level of the states, while there has been no example equivalent to that of Jammu and Kashmir, at present, no fewer than nine states of the Union enjoy “special powers” (Articles 371A-I). However, with two qualified exceptions (Nagaland and Mizoram, which we shall discuss) these special powers are either of a purely administrative character, or come accompanied with a federal override, or “kill switch”, thus making them attenuated examples of asymmetric federalism, at best. (III) And finally, there are the Fifth and Sixth Schedules, which form “mini-Constitutions” of a sort: a separate governing code for indigenous (Adivasi) territories within India. Much like the constellation of sub-articles that branch out from Article 371, however, the Fifth and Sixth Schedules suffer from precisely the same problem of being subjected to the federal kill-switch (IV).

As the conclusion will argue, therefore, the Constitution’s vision of power is a contested one, with impulses towards heterogeneity and diversity constantly countered – within the text itself – by strong centralising tendencies. Specifically, while the Constitution purports to recognise pluralism in terms of constitutional arrangements, it undermines that recognition by a counter-push towards homogeneity and uniformity. In this context, thus, asymmetric federalism in India suffers from the same centralising drift that characterises the other axes upon which power under the Indian Constitution is organised. (V)

Keywords: Indian constitutional law, asymmetric federalism,