Constitutional Redesign of the Federal Balance: India and Article 370

Aakarsh Banyal

Symbiosis Law School

In 1947, it was deemed necessary for the state of Jammu and Kashmir to be accorded a ‘special status’ within the Indian Constitution, which was done through Article 370. This provision permitted the state to have its own constitution and allowed the application of central laws in Jammu and Kashmir only with the assent of the state legislature. Such autonomy was unprecedented in the Indian political system, and was a unique facet of Indian federalism as it established a special constitutional relationship between the centre and Jammu and Kashmir.

Recently, the central government amended the aforementioned Article 370 to entirely water down its effects, thereby axing the autonomy of Jammu and Kashmir.  

An often-overlooked implication of this amendment concerns the nature of federalism in India. This post outlines the concept of Indian federalism, one which has also been recognised as part of the Basic Structure of the Indian Constitution. Furthermore, it addresses the possible enduring repercussions of the amended Article 370 on centre-state relations.

K.C. Wheare described the federal principle as “the method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent.” The basic understanding of federalism implies decentralization and devolution of power from the national level to the state or provincial level. Strictu sensu, the two levels exist as distinct polities, and are bestowed with certain autonomous powers as per a written constitution, which is thus injected with ‘centrifugal’ elements to guarantee the decentralization of power. This is the model of federalism that is followed in the United States. 

India, on the other hand, has fashioned a unique concept of federalism, both in the Constitution and in practice. In addition to centrifugal elements (which are the mainstay for the sustenance of federalism), there are strong ‘centripetal’ elements that decrease the degree of autonomy enjoyed by state governments. The residuary power in Schedule VII, Entry 97 of the Union List of the Constitution, the power of the centre to proclaim emergency under Articles 352, 356 and 360 of the Indian Constitution, the concept of single citizenship, and a unified judiciary, all point to the strong centralising tendencies of the Indian polity. However, the reason why a federal structure has been sustained for decades in India is because a delicate ‘balance’ between these centrifugal and centripetal forces has been maintained. This ‘balance’ is the touchstone of federalism in India.

The concept of a federal balance is visible in Sawer’s works:

“The power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions are intended to be as free as possible to pursue their own local interest.”

Sawer goes on to mention that the medium through which this balance is achieved is a system where parties to the arrangement are accorded a reasonable degree of autonomy and can negotiate the terms of cooperation.

This is the foundation of the philosophy of ‘cooperative federalism’, in which there ought to be seamless interaction and collective action between the centre and the states, especially on issues where a specific interest of a states is under consideration. This conception has been recognised by the Indian Supreme Court in Govt. of NCT of Delhi v Union of India. The rationale behind this was that it was the intention of the constituent assembly that India’s federal character would entail the two polities working in tandem. Despite a strong centre, the interests of the states would not be undermined, and one way of ensuring this would be through effective representation of the people’s will via its elected representatives.

I contend that the amendment to Article 370 damages this understanding of cooperative federalism and disrupts the balance between centripetal and centrifugal federal forces in India. According to Article 370(3), Article 370 could have been modified or rendered inoperable by way of a presidential declaration, contingent on the assent of the ‘Constituent Assembly’ of Jammu and Kashmir. However, this constituent assembly had ceased to exist by 1957, and this made it virtually impossible to amend that provision.

In the present instance, the central government amended Article 370 through subversion of the above requirement and, subsequently, of the Indian understanding of federalism. This transpired in a three-fold manner. First, the centre invoked Article 370(1) during president’s rule in the state. Article 370(1) provides for the modification and amendment of other constitutional provisions in relation to Jammu and Kashmir. To initiate this procedure under Article 370(1), the concurrence of the government of the state of Jammu and Kashmir had to be taken. However, owing to the president’s rule which led to the dissolution of the legislative assembly and vesting of its powers with the Governor (a representative of the centre in the state), only the Governor’s assent was taken. Second, through Article 370(1), Article 367 was amended to add a new interpretation sub-clause stating that the words ‘Constituent Assembly’ in Article 370(3) are to be read as ‘Legislative Assembly of the State’. Third, through the combined effect of the new interpretation of Article 370(3) and the absence of a legislative assembly in the state, the central government passed a statutory resolution recommending the president to amend Article 370.

By omitting to consult the elected state representatives in the matter, the central government has gone against the grain of co-operative Federalism. Such untoward violation of the constitutional scheme may even be tantamount to effecting a constitutional fraud: in fact, by extending the reach of the central government in this unprecedented manner, it could be said that the altered federalism is ‘coercive’ in nature.

Coercive federalism is characterised by an increased concentration of power with the central government and the ability of the centre to impose policies on the states. In the 1960s, the United States experienced a similar trend, in which there was a demise of inter-governmental institutions and an increase in the predominance of the federal government. It is clear that coercive federalism strikes at the heart of centrifugal tendencies. By concentrating power in the hands of the centre, it reduces the bargaining power of the states and, in the present case, it provides them with none. ‘Coercive federalism’ cannot even be termed as another understanding of federalism in the truest sense. In the US experience, the encroachment of the states’ powers by the federal government was enacted through grants, aids and mandates. In the current Indian experience, it is the Indian Constitution itself which has been employed as an instrument to shred the federal fabric of the nation. This poses a risk that the centre could sideline the states’ representation in the decision-making process even while the outcome directly affects the states’ interests.

This ‘coercive’ conception, which the central government has attempted to espouse through suspect alteration of Article 370, damages the concept of federalism by upsetting the ‘balance’ of autonomy between the centre and the state. In addition, this attacks the accepted understanding of the Supreme  Court on ‘cooperative’ centre-state relations.

The amendment might be the last chapter in India’s tumultuous tryst with Article 370. However, what remains to be seen is whether the judiciary accepts and endures the introduction of such a contentious understanding of federalism to the Indian constitutional model.

Aakarsh Banyal is an undergraduate student at Symbiosis Law School, Pune, India.

Suggested citation: Aakarsh Banyal, “Constitutional Redesign of the Federal Balance: India and Article 370” IACL-AIDC Blog (28 November 2019), https://blog-iacl-aidc.org/2019-posts/2019/11/28/constitutional-redesign-of-the-federal-balance-india-and-article-370