ASYMMETRIC FEDERALISM, ARTICLE 370 MEANING, CAUSES, CRITICISM AND BENEFITS | CENTRE STATE RELATIONS | INDIAN POILITY

PM Modi — cooperative federalism. Our mantra is ‘Sabka Saath, Sabha vikas ‘

ASYMMETRIC FEDERALISM

MEANING

It is federalism based on unequal powers and relationships in political, administrative and fiscal arrangements spheres between the units constituting a federation.

CAUSES

1. Residuary Powers: In India, the residuary powers of legislation is vested in Parliament. 

2. Political causes: 5th & 6th schedule → special powers to govern tribal areas → develop separate identity & autonomy. 

3. Economic causes: special category status v. non-special category status. 

4. Socio-cultural causes: Articles 371 to 371J accord special powers to states in lieu of customary laws, religious and social practices. 

5. Historical causes: for instance, Article 370 which gave special status to J&K, now scrapped. During independence, states divided into Parts A, B, C, D. 6. Administrative causes: ex UT created as they are too small to become independent states. 

IMPORTANCE OF ASYMMETRIC FEDERALISM

1. Secure rights: These special provisions in the Const help in protecting FRs, and compensate for initial inequalities in the social system. 

2. Social justice: Proviso of affirmative action for extremely disadvantaged groups help in ensuring justice to them. 

3. Ensure unity in diversity: This ensure unity in diversity leading to ‘sabka sath sabka vikas’. 

4. Satisfy different needs: address different needs of federal units, as result of ethnic, linguistic or cultural difference. 

5. Reduce radicalisation: Special powers given to the state of J&K help in reducing radicalisation. 6. Better representation in democracy: It helped in providing representation to minority areas and areas with less pop providing them justice.

CRITICISM

1. Arbitrariness: meeting short term political expediency can cause degradation of institutions. 

2. Unitary Bias: central government has considerable scope to discriminate among the units. 

3. Source of Tension: for instance asymmetric federalism led to cascading effect in NE states. 

4. Difficult to rollback: it took 7 decades for Art 370 to be scrapped, though it was a temporary proviso.

The unequal status between various states gives rise to the need for constitutional recognition of inequality, which should be there into the federal polity but in such a way that which protect diversity without sacrificing unity or imposing uniformity.

ARTICLE 370 

BACKGROUND

1. Article 370: 

a. Art 370 (1) (c) — Art 1 & 370 shall apply to the state of J&K. 

b. Art 370 (1) (d) — Proviso of Indian Const could be applied to J&K through presidential order with the concurrence of state govt. 

c. Art 370 (3) — It authorised President to pass order removing/modifying parts of Art 370 with recommendation of constituent assembly of the state. 

2. Article 35A: It empowers J&K state legislature to define 'permanent residents‘ of the state and provide special rights and privileges to those permanent resident. It denies certain rights to non-permanent resident like they can’t acquire immovable property, vote, seek govt job or admission to a govt aided educational institute in J&K.

3. Art 367: It deals with the interpretation clause i.e. if anything isn’t clear then it needs to be read parallely with Art 367 to get things clarified.

PROCEDURE APPLIED TO ABROGATE ART 370

1. Constitution [Application to J&K] order 2019 issues by President in exercise of the

powers u/a 370 used to withdraw the special status of J&K.

2. Presidential order extended all proviso of Indian const to J&K. It also made changes to

Art 367. Under it, President order inserted new sub clause which states that words

‘constituent assembly’ in Article 370 muse be read as ‘Legislative Assembly of state’.

3. Also, J&K Reorganization Act, 2019 was passed by the Parliament, which re-organised

J&K into two UT viz. a] J&K division with a legislative assembly & b] UT of Ladakh

without a legislative assembly.

SC CASES

1. Puranlal Lakhanpal Case: SC upheld the power of President to modify constitution

under Art 370 [1] [d].

2. Vijay Laxmi Jha Case: SC said that Art 370 acquired permanent status through years of

existence making its abrogation impossible.

3. Raghunath Rao Ganpat Rao Case: SC ruled that many Instrument of Accession signed

by Princely States ceased to exist with a commencement of the const and source of the

rights & obligations flow only from the const.

4. Santosh Gupta Case: Indian const is superior to J&K const.

BENEFITS

1. National Integration — Political, economic and social integration.

2. Eco growth.

3. Tackling militancy.

4. Prevent politicisation of issue.

5. Tapping Tourism potential.

CONCERNS

1. One proviso of the article used to nullify other article.

2. Doctrine of colourable legislation — what you can’t do directly, can’t be done indirectly.

3. Violate Federalism — When Parliament can’t bring change, how come President bought

change.

4. SC in 2018 observed that Art 370 acquired the place of permanence.

5. For 1st time state is downgraded to UT.

6. May further alienate Kashmiri people.

7. Stress international & diplomatic relations with amany countries in general and Pak in

particular.

DEVELOPMENTS SINCE ABROGATION OF ART 370

Steps Taken

1. GoI intro package of Rs 80,000 crore for development works in J&K.

2. Hundreds of state laws repealed & modified and replaced by central laws.

3. Dilution in Domicile laws after Article 35A was repealed — Parliament refined domicile in

J&K [resident in UT for 15 yrs or studied for 7 yrs & appeared in Class X/XII exam].

4. Curfews, detention of political prisoners etc steps taken to contain violent protest

BENEFITS

1. Steps shall increase investments → boost industrial growth → create job opportunities

and decrease militancy.

2. Extended the jurisdiction of some critical legislation like RTI Act 2005, Whistle Blower

Protection Act 2014.

3. National Saffron Mission — 3,500 hectares of land in J&K rejuvenated for saffron

cultivation.

4. J&K citizens can now reap benefits of central schemes such as Ayushman Bharat scheme,

Atal Pension Yojana, PM-KISAN, PM Jan Dhan.

5. Central government employees posted in J&K can reap same benefits as in the rest of

the country.

ISSUES

1. Pakistan portrayed the changes in Kashmir as a ‚humanitarian crisis‛ that threatened the

stability of the region.

2. Countries like Turkey and Malaysia criticized the restrictions imposed in the J&K valley.

3. Concerns regarding human rights violations in Kashmir raised by some sections in US, UK

and other European countries.

4. Strict security measures like internet blockade resulted in job losses, closure of schools,

severely impacted student education etc.

CONCLUSION

1. Vajpayee Doctrine of Kashmir: Insaniyat, Jhamooriyat and Kashmiriyat [Humanity,

Peace & Kashmir].

2. 8 point package by 3 interlocutors suggested formation of special task force to examine

the developmental needs of J&K and recommended dialogue with Political Parties [PP].

3. PM Modi — Kashmir will be ‘Tourist Capital’.