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Constitutional Asymmetry in Indian Federalism
The Indian federal structure is largely symmetric albeit with some asymmetric features. An attempt is made to locate union territories as a distinct unit of the Indian federation in the context of asymmetrical federalism, and their status is examined through the principle of weighted and differentiated equality in India. There has been an attempt to accommodate diversity in India through asymmetrical provision of power sharing between states. The establishment of union territories has also followed this principle of asymmetry—justified by their unique context and origin—as seen in the distinctive powers of the union territories of Delhi, Chandigarh, Puducherry, and Jammu and Kashmir.
This paper aims to locate union territories, a special unit of the Indian federation, in the context of asymmetrical federalism. It analyses their status through the principle of weighted and differentiated equality in India. India has tried to accommodate diversity through an asymmetrical provision for power sharing, whereby some states are more equal than others. Similar to many federations, India has certain de facto asymmetrical federal features with regard to differences of size, population, wealth, and influence between the federating units (Saxena 2012). India also has all sorts of de jure or constitutional asymmetries in terms of special position, powers, and protection enjoyed by the states of Nagaland (Article 371A of the Constitution), Sikkim (Article 371F), and Mizoram (Article 371G) as well as the former state of Jammu and Kashmir (Article 370 of the Constitution abrogated in August 2019) (Singh and Saxena 2013). Further, the Fifth and the Sixth Schedules of the Constitution comprise numerous distinctive provisions for administration and protection of Scheduled Areas and Scheduled Tribes in any state (Fifth Schedule), and in the states of Assam, Meghalaya, Tripura, and Mizoram (Sixth Schedule). Comparably, the union territories are less autonomous than the states and are coordinated in varying degrees by the union government. Some union territories are entirely administrated by the union without any local representation. This paper focuses on the distinct union territories of Chandigarh, Puducherry, Delhi, and Jammu and Kashmir.
The Indian model is characterised by weighted and differentiated equality. Within Indian federalism, while all states are considered “equal,” some states are more equal or unequal than others, which is analogous to the concept of “asymmetrical federalism” in comparative theory (Dhavan and Saxena 2006; Saxena 2018). Ronald Watts (2008) makes a theoretically fruitful division amid political asymmetry that is present in each federation by way of geographical and demographic proportions of the units, and constitutional asymmetry that “refers specifically to differences in the status of legislative and executive powers assigned by the constitution to the different regional units.” The Indian example illustrates both these types of asymmetries.
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