Asymmetrical federalism & abrogation of Art 370
WITH the Supreme Court having fixed August 2 as the date to start hearing a batch of petitions challenging the ‘dilution’ of Article 370, live proceedings will be watched with keen interest not only by various stakeholders but also constitutional experts and the wider community of scholars from varied disciplines.
The contextual genesis of Article 370 has to be comprehended. The provision was introduced in the Indian Constitution concomitant to the fact that Muslim-majority J&K under the leadership of Sheikh Abdullah challenged the divisive two-nation theory, and sided with a democratic and secular India in 1947. It is true, as argued by Foreign Minister S Jaishankar on various occasions, that the draft of the Instrument of Accession signed by Hari Singh, the ruler of the princely state of J&K, Viceroy Mountbatten and the rulers of 564 other princely states was exactly the same. In less than six years, Sheikh was dethroned and arrested on August 9, 1953, and thus began a tumultuous relationship between New Delhi and the Kashmir valley. A corpus of literature exists about the factors that led to the estrangement between the two sides. In hindsight, the birth pangs of a newly independent poor country, including real or perceived insecurities in a communal riots-ravaged north India, were among the factors contributing to the misunderstandings. Today, India enjoys heft in the international arena, unlike the situation in 1947, when the pulls and pressures of big powers were hard to ignore.
The action taken on August 5, 2019, was no different from the earlier acts that substantially hollowed out various provisions of Article 370. The difference is that this time Parliament completely de-operationalised Article 370.
The proponents of Article 370 underestimated the political resonance of its abrogation across the country. This is also on account of the rigid interpretation of its interlinked provisions such as Article 35A. This prevented long-term residents in J&K, including Partition refugees, many of whom were Dalits and poor, to acquire domicile rights. These facts were at the core of the arguments presented by the defenders of the abrogation. The fact is that most of the political parties in India, with the exception of DMK and Left parties, didn’t come out in the open against the abrogation of Article 370. The PM made a reference to the plight of the Valmiki community in his speech to the nation on August 9, 2019. It was not a coincidence that BSP president Mayawati was one of the first Opposition leaders to back the Centre’s decision. The same cavalier attitude was demonstrated by the J&K political elite on the issue of political reservation to the Scheduled Tribes (STs). Political reservation to the STs, which is part of the new legislation, will primarily benefit the Gujjars and Bakerwals, who are all Muslim in J&K.
The abrogation of Article 370 was also accompanied by the creation of the Union Territory of Ladakh on August 5, 2019, after its separation from Jammu and Kashmir. In 2019, it didn’t take too long for the initial excitement over the new status of UT to dampen in Leh. Lack of clarity over the powers of the elected councils of Leh and Kargil in the new constitutional arrangement proved to be an impediment.
In the new arrangement, the unelected Lieutenant-Governor is the de facto head of the government and head of state. Out of the nearly Rs 6,000 crore budget allocated annually for Ladakh by the Centre, about 9 per cent has to be shared by the two councils. The rest is under the LG’s administration. The working season in the region is less than six months long and the principle of rolling over of the unspent funds was followed before August 5, 2019. Now, the unspent funds lapse. There is also an absence of the mechanism of institutional coordination between the administration of the LG and the elected council, with the senior bureaucrats reporting to the former. There is also a demand for the application of North-East-centric Sixth Schedule of the Constitution in Ladakh. The Sixth Schedule was primarily designed for the tribal areas in Assam, Meghalaya, Tripura and Mizoram, where autonomous district and regional councils are endowed with legislative, executive, judicial and financial powers. These demands may or may not be viable, but this rare solidarity between Leh and Kargil is hard to ignore.
The abrogation of Article 370 was a setback to efforts to facilitate a constructive narrative around federalism. The volatile situation in Manipur today proves that federalism for a particular region has to constantly evolve to address the aspirations of diverse communities and relations among them without curtailing fundamental rights. Compared to the statutes of many western democracies, the Constitution of India is less federal. Even then, it accommodates a degree of asymmetrical federalism. This is illustrated in parts XXI and XXII of the Constitution, which has Article 371 that grants temporary, transition and special provisions to some states. In the case of PM Modi’s home state Gujarat, special powers have been given to the Governor to create independent development boards for Saurashtra and Kutch. There are customised provisions for Maharashtra (Vidarbha and Marathwada) in addition to Article 371A (Nagaland), 371B (Assam), 371C (Manipur), 371D and E (Andhra Pradesh), 371F (Sikkim), 371G (Mizoram), 371H (Arunachal Pradesh) and 371I (Goa).
In the context of the Global South, India’s varied experiences in federalism are considered significant as the socio-economic conditions are relatable. Thereby, both supporters and detractors of Article 370 have lost an opportunity to advance the discussion around the contesting claims of diverse stakeholders of India within a more harmonious and constructive ambit of asymmetrical federalism.
