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Dynamics of Constitutional Asymmetry in Indian Federalism

The Case of the National Capital Territory of Delhi, Nagaland, and Manipur
Kham Khan Suan Hausing and Balveer Arora

Abstract

This article addresses the differential “federal dynamics” implied by the idea and practice of asymmetry in Indian federalism by examining the particular cases of the National Capital Territory of Delhi (NCTD) under Article 239AA, Nagaland under Article 371A and the hill areas of Manipur under Article 371C. Drawing on extant literature on “federal dynamics” that posits a distinctive authority relationship between different territorial units within federations, we contend that the “frictions and tensions” inherent in the three cases stem from overlapping and contending interpretations of the sources and the extent of powers assigned to each constituent unit. We emphasize how competitive populism and inter-party competition between the Bharatiya Janata Party and the Aam Aadmi Party in the NCTD, and intra-party factional contests in Manipur since May 2015 and February 2017, respectively, use “frictions and tensions” in ways that underline the “misfit” between federal institutions and the centralizing idea of ruling parties. We contend that this, and the ability to forge inter-party deliberation and a consultative mechanism in Nagaland mitigate and offset violent conflicts in multilevel federal interactions, and reinforces the imperative to underscore the mutually reinforcing relationship between federalism and democracy in India and beyond.

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Kham Khan Suan Hausing’s thanks go to the Institution of Eminence, University of Hyderabad for providing him with a travel grant to present a version of this paper at the International Association of the Centres for Federal Studies’ Annual Conference at the University of Antwerp, Antwerp, Belgium, 17–18 September 2024. Balveer Arora is grateful for the support provided by the IIC Planning Group on Federal Democracy Project (2023–25) which enabled this article to be finalized.

1Existing literature on the dynamic multilayered interactions between political units within and between federal systems emphasizes how and why the differential contexts, nature and origins of federal systems have profound implications on the rules, practices and institutional arrangements, which are the driving force behind these interactions (Arora 1995; Benz and Broschek 2013; Burgess 2006; Elazar 1987; Stepan 1999; Watts 2008). The inherent “frictions and tensions” embedded in these interactions become particularly pronounced in federal systems that are marked by distinctive arrays of constitutional asymmetry (Broschek 2013). As a normative idea and structural attribute of federal systems, constitutional asymmetry entails the differential distribution of powers across constituent units to support the recognition and accommodation of territorially defined political units and mobilized groups (Gagnon 2001; Bhattacharyya 2023). Given that constitutional asymmetry entails divided and shared powers/jurisdiction within federal systems to recognize and accommodate diversities (of territories and people), it often uses conflicting interpretation and contestations over the specific jurisdictional domains decentralized/devolved to territorial units that are accorded asymmetry (Bhatia 2020, 2022; Hausing 2014; Tillin 2007, 2016).

  • 1 The Government of NCT Delhi controls a range of “services” under Article 239AA of the Indian Consti (...)

2This article examines the differential “federal dynamics” entailed by the idea and practice of constitutional asymmetry in Indian federalism by taking up three distinctive cases, namely, National Capital Territory of Delhi (NCTD) under Article 239AA, Nagaland under Article 371A and the hill areas of Manipur under Article 371C. These cases resonate with recent developments in India’s federal polity and emphasize how, at Center–state and state–substate levels, the “frictions and tensions” inherent in constitutional asymmetry stem not only from conflicting interpretations over divided and shared powers but also from the “misfit between federal institutions and their legitimizing ideas” (cf Benz and Broschek 2013:10). On one level, the contentious Center–state dynamics becomes apparent in the wake of contestations over the abrogation of Article 370 in early August 2019, which until then gave exceptional constitutional status to Jammu and Kashmir (J&K) (Adeney 2017; Bhatia 2022; Tillin 2007, 2016). As we demonstrate in this article, this has become particularly evident during the simultaneous contestations around the demand for a frontier Nagaland State since winter 2010, and the admissible extent of the “occupied field” of the Indian parliament on “mines and minerals,” which is purportedly encompassed by “land and resources”—the exclusive domain of the Nagaland Legislative Assembly under Article 371A during the period 2009 to 2013 (Hausing 2014; McDuie-Ra and Kikon 2016; Wouters 2017). On another level, tendentious state–substate dynamics also becomes apparent from attempts to weaken the substate constitutional asymmetry enjoyed by the hill areas of Manipur in tribal ownership of land and the composition of the Hill Areas Committee (HAC) under Article 371C in early September 2021 when an attempt was made to incorporate nine members of Manipur’s Legislative Assembly from outside the existing members of HAC (Hausing 2021, 2022a). The multidimensional dynamics entailed by India’s constitutional asymmetry becomes evident in light of the above and of continuing contestation over the control of “services,”1 especially of the transfer and posting of civil service officers in the NCTD between the Bharatiya Janata Party (BJP)-led central government and the Aam Aadmi Party (AAP)-led NCTD government during the period May 2015 to February 2025 (Bhatia 2020; Kumar 2018; Saxena 2021).

3Each of these recent developments emphasizes how past and present politics of constitutional asymmetry are linked and intertwined in ways that define and redefine the nature and outcome of multilayered federal dynamics between the Center and the state(s)/Union Territory on the one hand, and between Center, state and substate levels on the other hand. In examining these dynamics, this article also highlights how the federal system in India and beyond tends to oscillate between centralization and decentralization.

  • 2 The Sixth Schedule was subsequently extended to the Tripura Tribal Areas in 1985 and to Bodoland, A (...)

4For our analytical purposes, we distinguish between first-generation and second-generation models of asymmetric federalism in India. The first-generation models include Article 370 (which granted special constitutional status to J&K until August 2019), and the Fifth and Sixth2 Schedules of India’s Constitution. These models are part of the original design of India’s federal system. By contrast, second-generation models encompass Union Territories, and the omnibus Article 371. Although constitutional asymmetries in “second-generation” models were not part of the original design of India’s federal framework, they maintain continuity with the first-generation models. Both sets of models reflect the foundational idea of recognizing and institutionalizing diversity at the inception of India’s federal republic. By underlining the overarching interpretative framework within which these cases are to be understood, this study sheds light on the complex multidimensional nature of federal relations in India. Each of the three cases selected for this study has distinct historical roots that have important bearings on the multidimensional nature of asymmetric federalism in India. For example, the unique social and cultural identities of the tribals in Nagaland and the hill areas of Manipur foreground their historical and political experience of being excluded from the pan-Indian institutional framework under the “Backward Tract,” 1919, and the Excluded and Partially Excluded Areas of the Government of India Act, 1935. Similarly, the historical legacy of governance under the chief commissioner’s province since 1911, followed by its status as a Part C type state after independence, shaped the distinctive institutional arrangements made for the NCTD in 1992. The ongoing historical political dynamics in these cases are interlinked; they evolve and reinforce each other in a characteristic pattern.

5Drawing on extant literature on “federal dynamics” which posits differential authority relationships between distinct territorial units of federations, we contend in this article that the “frictions and tensions” in the three cases stem from overlapping yet conflicting interpretations of the sources and extent of powers assigned to each constituent unit (cf Benz and Broschek 2013). However, these need not be seen as aberrations, but as an integral part of the normal process of adapting the federal system to the competing demands and interests of a constellation of actors including political parties and government organizations. To understand how multidimensional aspects of federal dynamics unravel across Center, state/UT and substate levels, we focus on how competitive populism and interparty competition between the BJP and the AAP in the NCTD, especially after May 2015, and intraparty factional competition in Manipur after February 2017 use “frictions and tensions” between the Center and the NCTD on the one hand, and between state and substate levels in Manipur on the other hand.

  • 3 The Government of National Capital Territory of Delhi (Amendment) Act, 2023, was published in the G (...)

6We argue that, although the Supreme Court’s (2023) recent intervention temporarily eased the tendentious relationship between the Center and the NCTD by offering a broader interpretive framework for the balance between federalism and democracy, this reprieve was short-lived. The central government’s amendment3 to the NCTD Act in August 2023 reinstated the Center’s control over “services.” By contrast, in Manipur, ongoing factional struggles and attempts to consolidate a populist leadership with a majoritarian agenda have opened up new fault lines in the state’s relationship with the Union. While both situations are driven by competitive populism and majoritarian agendas aimed at containment and control—fueling “frictions and tensions” in the federal structure—, Nagaland shows how the ruling party’s accommodative strategies initiated in the period 2009 to 2010 have forged a consensus through broad consultations with powerful social forces of the state. This approach has, to some extent, moderated violent conflicts between the Center and the state, as well as between the state and Naga society. 

7In other words, the ongoing conflictual federal dynamics between the Center and the NCTD, as well as between the state and the tribal hill areas of Manipur, are sustained by the lack of recognition and accommodation of the NCTD’s specific demands for greater autonomy over service-related matters. By contrast, in Nagaland, the distinctive recognition and accommodation of Naga rights—along with the ability to forge interparty consensus on core nationalist interests, particularly concerning land, resources, and customary religious practices—help moderate or mitigate the outbreak of violent conflict under Article 371A. Against this backdrop, this article gives an account of the continuity and change in the federal system by paying close attention to what, why, and how constitutional asymmetry as a structural attribute of India’s federal system adapts to the challenges of accommodating its diversities and continues to maintain its system-wide attributes despite the inbuilt “frictions and tensions” to bring change to “parts” of the system.

8Taking a cue from Benz and Broschek (2013:15), this article adopts the “federalism-through-time” perspective to address the way constitutional asymmetry as a form of “federal regimes evolve and adjust over the course of time” in India. Such a viewpoint “represents the animated perspective” by “tracing federal dynamics over an extended period of time” by “considering how past and present politics are linked through a multidimensional federal regime” (Benz and Broschek 2013). We aim to contribute to and to extend a stream of literature which takes cognizance of the mutually reinforcing relationship between federalism and democracy on the one hand, and how social cleavages and interparty competition shape the nature and outcome of federalism in deeply divided places on the other hand (Arora 2010; Benz and Broschek, 2013; Erk 2008; Gagnon 2001; Livingston 1956; Popelier 2021; Riker 1964). 

9This article is organized into six sections. In the following section, we examine the lineages, forms, and dynamics of asymmetric federalism in India by contextualizing the way the three second-generation models of asymmetry we selected present a continuum with the first-generation models and therefore need to be understood within a overarching interpretive framework that highlights the mutually reinforcing relationship between federalism and democracy. While the third, fourth, and fifth sections respectively examine the recent “frictions and tensions” in the three cases of the NCTD, Nagaland and the hill areas of Manipur, the sixth section concludes with reflections on the significance of asymmetric arrangements for Indian federalism.

ASYMMETRIC FEDERALISM IN INDIA: LINEAGES, FORMS, AND DYNAMICS

10Scholarly research broadly identifies two distinct forms of asymmetric federalism in India. The first consists of various autonomy-related arrangements that grant different degrees of self-rule to ethnic/nationality groups and territorially defined political units. This category encompasses constitutional asymmetry such as: (i) Article 370, which until early August 2019 allowed J&K to maintain a separate constitution and considerable powers, with the exception of the sectors of defense, communication, and external affairs, which were reserved for the Center; (ii) the omnibus Article 371 which gives states like Nagaland and Mizoram special powers over, inter alia, land and property (resources for Nagaland), religious and customary laws; (iii) the Fifth and Sixth Schedules, which provide autonomy to territorially concentrated tribal groups; and (iv) union territories with a varying distribution of powers and competencies (Arora 1995; Tillin 2007, 2016; Hausing 2014; Saxena 2021; Bhattacharyya 2023). The second form of asymmetric federalism takes a developmentalist approach—as described by Tillin (2016), addressing intrastate disparities and backwardness by giving local groups preferential access to employment and education. A prime example is Article 371D that was introduced in the erstwhile state of Andhra Pradesh, and gives local people in the Telangana region preferential access to education and a specific class of employment (groups C and D—subordinate bureaucratic posts).

11Two interpretive frameworks are usually invoked in the existing literature to explain and make sense of asymmetric federalism in India, namely, normative and functional. For Tillin (2007, 2016), asymmetric federalism provides the normative foundation for the recognition and accommodation of territorially based ethnic or nationality-based groups by proposing a range of self-rule. This is broadly in line with what Taylor (1995) calls “the politics of recognition,” which entails “a liberal defence of minority rights” (Kymlicka 1996) in ways that recognize and accommodate group-differentiated rights beyond universal individual rights. In her initial intervention, Tillin (2007) contends that the special constitutional asymmetry negotiated between the Government of India (GoI) and the former princely state of J&K under Article 370 as a condition of the state’s accession is neither central to India’s original federal makeup nor does it live up to the normative ideal of asymmetric federalism because it stems not from the recognition of the distinctive ethnic identity of the Kashmiris but from the unique historical circumstances in which the state was integrated into the Indian union. Drawing from Watts (2008) who made a distinction between “full-fledged member-states” and “peripheral units” of federations, Tillin (2007: 47–48) asserts that even the Sixth Schedule that qualifies as a case of asymmetric federalism by recognizing and accommodating distinct rights and identities of tribal groups in Northeast India is not central to India’s federal makeup as it remains “peripheral” to the “national imaginary.”

  • 4 Because states like Nagaland and Mizoram were created without considering their financial viability (...)

12Bhatia (2022) went a step a further in arguing that “Indian constitutionalism was never entirely comfortable with the idea (of asymmetric federalism).” This, coupled with the ambiguous provision of Article 370 that undergirds unequal and often coercive power relations between the Center and J&K, and the Supreme Court’s interpretations of Article 370 in favor of the Center in effect ended the “asymmetric federal experiment” in J&K “long before the events of 5th August, 2019,” when the Center finally abrogated Article 370 (Bhatia 2022). Bhatia also considered that “the special powers” granted to tribal groups in Northeast India with the “two qualified exceptions” of Nagaland (Article 371A) and Mizoram (Article 371G)4 “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” (emphasis added).

  • 5 Four distinct types of polities were inherited by India at the time of its foundation: namely the B (...)

13Viewed through a functional lens, asymmetric federalism is considered to be the inevitable institutional arrangement as India’s polity shifted from a unitary to a federal structure at its inception. Adapting federalism to India requires restructuring an array of polities5 which hitherto enjoyed sovereign or semi-sovereign status (Arora 1995). This process simultaneously involves the devolution and decentralization of power. The successful integration of diverse polities, including 562 princely states, and a multicultural society calls for an asymmetric distribution of powers (Bhatia 2022). Scholars such as Arora (1995, 2010), Stepan, Linz, and Yadav (2011), Hausing (2014, 2022a), Saxena (2021), and Bhattacharyya (2023) consider that asymmetric federalism provides an institutional framework that fosters national unity and cohesion by accommodating multiple yet complimentary identities. The functional framework of combining “self-rule” with “shared rule” (Elazar 1987) not only helps to consolidate the Indian state and nation-building but also forestalls secessionist tendencies by containing conflicts within state borders (Manor 1996; Stepan et al. 2011; Hausing 2014; Tillin 2016).

14Indeed, the idea that asymmetric federalism institutionally crystallizes identities and fosters centrifugal tendencies has been, and continues to be, an overriding concern among certain members of the Constituent Assembly when they crafted India’s federal polity, a long time before Tarlton (1965) raised a similar concern when he analytically developed “asymmetrical federalism” in the mid-1960s. Writing in keeping with the tradition of a national federalism framework made famous by Riker (1964), Tarlton was particularly skeptical about the “conflict”- and “secessionist”-inducing potential of institutionalizing social cleavages.

15The fact that the Indian Constitution had been framed under the dark shadow of partition and large-scale communal violence powerfully resonated with centralists and defenders of a unitarian polity in the Constituent Assembly (CA), such as Brajeshwar Prasad from Orissa and Kuladhar Chaliha from Assam. Not surprisingly, when the report by the Bordoloi Committee (a subcommittee appointed by the Constituent Assembly), which recommended autonomy for the tribals in the erstwhile composite state of Assam, was discussed over the period September 5–7, 1949, these members staunchly registered their opposition to provincial autonomy. Prasad’s opposition to tribal self-rule stemmed not only from his concern about Assam’s limited resource base but also from a misunderstanding and entrenched disdain of the tribal Naga’s practice of headhunting as an instance of delivering summary justice. Mindful that conceding tribal self-rule would be “beyond the economic resources” of Assam, Prasad forewarned that doing so would be the “surest method of inviting chaos, anarchy and disorder” [Constituent Assembly Debates (CAD) 1949: 1009]. In the same vein, Chaliha did not mince his words about his longstanding desire to assimilate the tribals and his opposition to tribal self-rule. His categorical opposition stemmed from his conviction that the demand for tribal autonomy smacked of “an old separatist tendency” which was bound not only to lead to “misrule, to a primitive rule” but may also create a “tribalstan” or “a communistan” (CAD 1949: 1008).

16This standpoint has become central for integrationists, informing studies on the dissolution of the former Soviet Union and the communist states of Eastern Europe. Cornell (2002), Bunce (2004), and Roeder (2009) are prominent proponents of this standpoint. Bunce (2004), for example, contended that federal institutions systematize differences and “constitute building blocks” of “subversive institutions” which eventually led to the breakup of the state. At odds with this, scholars such as McGarry and O’Leary (1993, 2009), Hale (2004), and Anderson (2012), who write from the standpoint of an accommodation framework, contend, however, that it is not federalism per se, but the lack of democracy which foregrounded the breakup of the former USSR and other communist countries in Eastern Europe. The insights of accommodationists reinforce the imperative to recognize the complementarity and mutually reinforcing relationship between federalism and democracy.

17Indeed, these insights have informed the minds of accommodationist members of the Constituent Assembly, such as Gopinath Bordoloi from Assam, James Joy Mohan Nichols Roy from the Khasi and Jaintia Hills, Jaipal Singh from the Jharkhand region of Madhya Bharat (now Madhya Pradesh), and Bhimrao Ramji Ambedkar. These members—and Bordoloi in particular—underlined the distinctive autonomous “societal culture” (Kymlicka 2001:25) of the tribals in Northeast India or elsewhere and averred that elements of good governance and democracy were already there. Making his case for a “different sort of scheme” for the tribals of erstwhile Assam, Ambedkar contended that “the tribals in Assam . . . [have] their roots . . . in their own civilization and their own culture,” unlike other groups who are “more or less Hinduised, more or less assimilated with the civilization and culture of the majority of the people” (CAD 1949:1025).

18Granting autonomy to tribals of erstwhile Assam ultimately stems from careful deliberation and negotiation amongst members of the Constituent Assembly. The “cascaded autonomy” which emerged from this under the Sixth Schedule represents an interlocking balance and “negotiated jurisdiction” whereby the Autonomous District Councils (ADCs) and Regional Councils (RCs) are invested with legislative, executive, and judicial powers on matters pertaining to tribal social and customary laws, religious practices, land and property (Dasgupta 1997). This autonomy-related framework is intended to link the local (village and district) to the regional, state and federal (national) institutional grid. This is considered imperative to “secure conditions of an enlarged democratic setting” (Hausing 2014:91; Gagnon 2001:322).

19As a point of our analytical reference and departure, we are cognizant of the fact that the three distinctive cases selected for this study are marked by contestation over the powers/jurisdiction decentralized/devolved to each case. We argue that this contestation that creates “frictions and tensions” in the Center–state and State–substate dynamics, is driven by intense inter/intraparty competition and competitive populism which coincide with the consolidation of the BJP, a Hindu nationalist party. The BJP-led central government aggressively pushes centralization and majoritarian politics in ways that help both the BJP to electorally expand and consolidate itself, which stands in stark contrast to counter-attempts by the different levels of the polity to affirm, reclaim, and sustain constitutional asymmetry. This underlines the fact that the BJP is not sufficiently committed to the durable recognition and accommodation of diversity, two foundational ideas of constitutional asymmetry. Behind these contentious federal dynamics is the “divided” and “shared” distribution of powers across units of the federal polity which often leads to a conflicting interpretation of the constitutional provisions which undergird asymmetric federalism.

We shall now examine three cases separately, the NCTD under Article 239AA, Nagaland under Article 371A and the hill areas of Manipur under Article 371C, to understand these complex and multidimensional federal dynamics.

THE CASE OF THE NCTD

  • 6 As of November 2024, the eight union territories are: Andaman and Nicobar Islands; Chandigarh; Dada (...)
  • 7 Puducherry has a 30-member Legislative Assembly, with five members reserved for Scheduled Castes, a (...)
  • 8 J&K has a 119-member Legislative Assembly, with 24 seats reserved for Pakistan-administered J&K, an (...)

20The constitutional asymmetry enjoyed by the NCTD under Article 239AA is unique among the eight union territories.6 Along with Puducherry7 and J&K,8 the NCTD remains the only union territory that has its own legislative assembly of 70 members, a council of ministers (limited to no more than 10 percent of the assembly), and a chief minister, all of whom are elected for a period of five years, as are their counterparts in the 28 full-fledged states. Like other Indian states, residuary powers are invested in the Center, and the NCTD enjoys clearly defined and overlapping powers/jurisdictions on subjects listed in List II (state) and List III (concurrent). However, what sets the NCTD apart from other full-fledged states is that it does not exercise legislative and executive competences over entry 1 (public order), entry 2 (police), or entry 18 (land) of List II of the Seventh Schedule of India’s Constitution. Again, like other states, in the case of conflict of jurisdictions over subjects listed above, the Parliament (Center) has overriding power.

21The unique constitutional asymmetry enjoyed by the NCTD stems from a longstanding and distinctive political history of being placed under the Chief Commissioner’s Province from 1911 and in post-independent India as a Part C type state from 1950 to 1956. Since the state’s Reorganization Act (1955) was enacted, the NCTD has been placed under a Union Territory regime. This status underwent substantial change when the Constitution (69th Amendment) Act, 1991, integrated Article 239AA and consolidated its constitutional asymmetry.

22Since the founding of the Indian Republic, the constitutional status of the NCTD has been determined by a complex federal dynamic of interactions between the Center and the Union Territory. The ongoing tension between centralization and decentralization is evident in these dynamics which are rooted in history. Indeed, when the seven-member Pattabhi Sitaramayya Committee constituted by the Constituent Assembly recommended “near-statehood” status with a separate self-government consisting of a 50-member Legislative Assembly, a three-member Council of Ministers (CoM) with the “power to legislate on all matters in the State List and the Concurrent List”, the matter was scrapped by influential leaders in the Constituent Assembly, such as Jawaharlal Nehru, Sardar Vallabhai Patel, Rajendra Prasad, Bhimrao Ramji Ambedkar and Chakravarthi Rajagopalachari (Sharma 2023). Interestingly enough, Nehru asked for the outright rejection of the Sitaramayya committee’s recommendation on the basis that it would be “logical and prudent that the federal government should exercise exclusive legislative powers and authority in respect of Delhi” (Sharma 2023).

23The Constituent Assembly agreed on a centralist idea that tends to concur with the US and Australian federal experience of central (federal) control over the administration of the national capital (Sharma 2023, Watts 2008:79–82). The fact that Delhi was classed as a Part C type state from 1952 to 1956 and was subsequently placed under a Union Territory regime follows an institutional pathway wherein central government can exercise direct control over the NCTD through its nominee, that is, the Lieutenant Governor (LG). Despite an attempt to modify this via a constitutional amendment in 1991 in order to establish an accountable self-government in the NCTD, the fact that the amendment allocates powers in such a way that the latter overlap with the powers of parliament, especially concerning List II and List III of the Seventh Schedule, creates possible frictions and tensions, especially over conflicting interpretations of powers/jurisdictions assigned to the NCTD (Bhatia 2020).

24The information above therefore provides the historical context of recent “frictions and tensions” between the Center and the NCTD government since May 2015 when the former contended that the latter does not have legislative and executive powers over “services” contained in entry 41 of List II (state list), that is, public services relating to public order, police, and land. The instant cause of this dynamics of contention between the Center and the NCTD pertains to LG Najeeb Jung’s appointment of Shakuntala Gamlin as acting chief secretary (CS) on May 15, 2015 when the then Chief Secretary K. K. Sharma took 10 days’ leave without consulting Arvind Kejriwal, chief minister, and his CoM (Mahaprashasta 2015, The Economic Times 2015). The Kejriwal-led Aam Aadmi Party (AAP) government also staunchly opposed this because Gamlin’s appointment had not only “bypassed many senior bureaucrats” but also because she had allegedly lobbied for the issuance of a “letter of comforts” to extend 11,000 crore loan guarantees to an energy-distribution company owned by Reliance, a company considered close to the BJP government at the Center (Mahaprashasta 2015). This, as well as a notification by the Center on May 21, 2015 to shield central civil services officials from the NCTD’s Anti-Corruption Bureau (ACB), was seen by Kejriwal’s government as an attempt to protect Jung, Gamlin, and the Reliance company.

  • 9 Since its inception in 1980, the revocation of Article 370, the epitome of constitutional asymmetry (...)

25Seen from another perspective, the frictions and tensions between the BJP-led central government and the Kejriwal-led AAP government in the NCTD over the special constitutional status enjoyed by the latter demonstrate how federal dynamics are driven by intense interparty rivalry and competitive populism from both parties. While it is widely acknowledged that the BJP is not fully committed to constitutional asymmetry, a point clearly evident from its persistent commitment to revoke Article 370,9 the populist strategies of the BJP and the AAP in the electoral arena are strikingly competitive. Unlike traditional clientelist populism which supposes the indiscriminate doling out of freebies/public money to promote public welfare, the populism of both parties bears an interesting similarity in so far as it is tailored (Wyatt 2013:366) as an “an ideological construct that celebrates the importance of the ordinary people.” While the BJP effectively used this as part of its “nationalist mobilisations that also seek to build cross-class coalitions (and de-emphasise conflict among the people of the nation)” (Wyatt 2013:366), Kejriwal and the AAP use it as a pragmatic political tool to provide “political services,” especially to clean up politics and bureaucracy to “rival other parties” (Wyatt 2015:168). Like other forms of populism, the “aam aadmi” (common people) remains at the heart of the AAP’s populist mobilization.

26Given that the AAP emerged in November 2012 as a legatee of the Anna Hazare-led “India Against Corruption” movement, its agenda for efficient services, especially for health, education, and electricity has had a very broad cross-caste and cross-class appeal and support within a very short span of time. This explains why it could make considerable inroads into the Congress’s and the BJP’s vote-base, while also being able to capture the space vacated by the Bahujan Samaj Party (BSP) in the NCTD. This ensures that it emerged not only as a “disruptor” of the dominant two-party system in place since the 1950s, but also as a formidable third player in NCDT politics since the 2013 assembly elections by winning 28 seats against BJP’s 31 seats (Kumar 2018, Farooqui 2021:346, Wyatt 2015). As the BJP refused to form the government, the Kejriwal-led AAP formed a minority government. Kejriwal then suddenly resigned after his government’s proposal to pass the Jan Lokpal bill was countered by all parties.

27The massive electoral return of the AAP in the 2015 Delhi assembly election, when it won 67 of the 70 seats (with 54 percent of votes), prepared for another round of confrontation with the BJP. Although the BJP was limited to three seats in the assembly, it won all seven parliamentary seats from Delhi and dominated national politics by winning an absolute majority in the 2014 parliamentary elections (Farooqui 2021).

28Not surprisingly, the BJP-led central government’s attempt to control the NCTD government through its LG who, other than his discretionary powers, is bound by the “aid and advice” of the Chief Minister (CM) and his CoM, caused added friction and tension in the Center-NCTD tendentious relationship.

  • 10 We are grateful to Louise Tillin for sharing her very useful notes on the recent judgements on fede (...)

29It is in this context that the Kejriwal-led AAP government litigated the Center’s notification to control “services” at Delhi High Court. After the Court upheld the Center’s notification in 2016, the matter was subsequently brought before the Supreme Court by the NCTD government. However, the apex court reversed Delhi High Court’s rule in two separate judgements, namely, in 2018 (a three-judge constitutional bench), then in 2023 (a five-judge bench), and affirmed the NCTD’s sui generis asymmetric federal status (Supreme Court 2018:para 207; 2023:para 12, 17, 137; Bhatia 2020).10 The apex court achieved this by invoking a larger interpretative framework to understand the intent of constitutional asymmetry envisaged by Article 239AA in ways that reinforce the complementary and mutually reinforcing relationship between federalism and democracy. Chief Justice Dhananjaya Yeshwant Chandrachud, who drafted the unanimous five-judge bench judgment on May 11, 2023, pushed home the point made by Ambedkar in the Constituent Assembly on November 4, 1948 that India’s federal polity foresees a “dual polity” wherein both the union (the Center) and the state (broadly interpreted to include the NCTD) remain “sovereign” in their respective legislative and executive domains. Upholding federalism and parliamentary democracy, according to Justice Chandrachud’s line of reasoning, implies that the exercise of executive powers by the LG has to pass the “triple chain of accountability” test (Supreme Court 2023: para 106–111). This test authorizes the LG and civil service officers to be accountable to the CM and his CoM; the CM and his CoM to the legislative assembly; and the assembly to the electorates who directly elected them for a five-year term.

30The BJP-led central government immediately passed an ordinance within eight days of the apex court’s judgement on May 19, 2023 to exclude “services” from the purview of the NCTD’s legislature. The ordinance has since been replaced by the NCTD government (Amendment) Act, 2023, which was notified in the Gazette of India on August 11, 2023 and comes into effect retrospectively as of May 11, 2023. While this effectively undermines the apex court’s judgement dated May 11, 2023, which affirmed the right of the NCTD’s power and control over “services,” it underscores the centralizing intent of the BJP-led central government. The apparent “misfit” between the intent of federal institutions envisaged for the NCTD and the centralizing idea, which is the driving force behind the working of constitutional asymmetry in this case, may take federal dynamics to unknown constitutional waters in the future.

THE CASE OF NAGALAND UNDER ARTICLE 371A

31Like the NCTD, the special constitutional status enjoyed by Nagaland under Article 371A falls within what we call “second-generation” models of constitutional asymmetry in India. Under this rubric, Nagaland has a two-level constitutional asymmetry. First, state-level constitutional asymmetry that endows the Nagaland Legislative Assembly (NLA) with special powers to make inapplicable laws made by the parliament on matters pertaining to the ownership and transfer of land and its resources, religious and social practices of the Naga, Naga customary law and procedures, and the administration of civil and criminal justice involving decisions according to Naga customary law [Article 371A(1)(a)]. Second, Article 371A also establishes substate constitutional asymmetry by providing a 35-member Regional Council (RC) for Tuensang district [Article 371(1)(d))]. The governor is not only responsible for ensuring the “equitable allocation of . . . money between the Tuensang district and the rest of the State” with the money allocated by the Center for Nagaland as a whole [Article 371A(2)(b)], but also ensures that no act passed by the state legislature is applied to Tuensang district unless the RC recommends the same to the governor. The governor is also invested with the power to make an exception or a modification to such act(s) that are applied to Tuensang after the same has been recommended by the RC [Article 371A(2)(c)]. This Council was abolished in 1973 (Hausing 2014).

  • 11 Our thanks go to one of the anonymous referees for drawing our attention to this aspect.

32The institutional vacuum created by this has subsequently opened new fault lines in the federal dynamics on the one hand between the Center and State, and on the other hand between the State and substate levels in Nagaland. This has been evident since the winter of 2010 when the Eastern Nagaland People’s Organisation (ENPO) demanded a frontier Nagaland State to overcome what it calls “discrimination” and “step-motherly treatment” of backward Naga tribes at the hands of their progressive tribe counterparts (Hausing 2014). The state’s earlier attempts—to address the grievances of the backward eastern Naga tribes by creating a separate Department of Under Developed Area (DUDA) in 2003, a 33-percent reservation, and a favorable roster system in matters of employment for backward tribes—were considered to have failed in terms of addressing their backwardness and representation in state bureaucracy. Although ongoing political mobilization since 2009 had been triggered by these government attempts, it had historical roots in the incomplete integration of Tuensang, part of the erstwhile North East Frontier Agency, into the Naga Hills in 1957.11 The fact that the BJP seeks to exploit this rift to expand its electoral base in Eastern/Frontier Nagaland is evident because the overwhelming developmental promises it made during the 2023 State Assembly elections were specially tailored to cater to the demands of “backward” Naga tribes (Hausing 2023). Given that the tendentious state–substate dynamics in Nagaland are not likely to come to an end just yet, the onus is on the Center to break the impasse created by the frictions and tensions inherent in the Center–state and state–substate dynamics.

33To put things into perspective: the special constitutional arrangement in Nagaland consists in the continuation of the disparate institutional arrangements made under British colonial rule via the “backward tract” [Government of India (GoI) Act, 1919] and “excluded areas” (GoI Act, 1935), which kept the Naga hills and other tribal territories in Northeast India outside the purview of pan-Indian legislation. It also presents a continuum with the original intent of the makers of India’s Constitution in that it stems from the recognition and accommodation of the historical and distinctive autonomous “societal culture” and political demands of the Naga for expansive self-rule.

  • 12 This agreement envisaged, inter alia, the integration of Naga-inhabited areas, the recognition and (...)
  • 13 This claim is rendered meaningless and unacceptable with regard to the Indian state on the grounds (...)

34Against this contextual background, the Indian state negotiated the Naga’s political demand for self-determination after two Naga delegates, who were co-opted by the Bordoloi Committee in 1947, refused to endorse the Committee’s report as it envisaged limited internal self-rule for the Naga under the Sixth Schedule (Hausing 2014, 2022a). Indeed, it had already become apparent by June 1947 that the Naga aspired to a more expansive self-rule when Akbar Hydari, the then Governor of Assam, negotiated the Nine-Point Agreement12 with the Naga National Council (NNC). As this Agreement soon fell through due to conflicting interpretations of clause nine of the Agreement, which pertains to the claim of the Naga’s right to determine their own political future,13 the Angami Zapu Phizo-led NNC declared their independence from India on August 14, 1947 (Longkumer 2018).

35Although Mahatma Gandhi was open to the recognition and accommodation of the Naga’s self-determination when NNC delegates met him at his Bhangi colony in Delhi on July 19, 1947, his premature demise and the subsequent series of political developments hardened the Indian state’s position concerning the Naga’s demand for self-determination (Hausing 2022a:127, Longkumer 2018). The first of these developments was a referendum that was held in 1951 in the Naga hills where over 99 percent of the Naga population reportedly endorsed NNC’s declaration of the Naga’s independence. The second development pertained to the public humiliation faced by Prime Minister Jawaharlal Nehru when he, along with his Burmese counterpart U Nu, visited Kohima on March 30, 1953. The high-handed manner in which the Kohima district administration at the time refused to allow the NNC delegation to meet and submit their memorandum to Nehru led to an en masse walkout of Naga from a public meeting which Nehru was about to address. Until then, Nehru had maintained a pragmatic approach to the Naga’s demand for independence and had considered that it was unrealistic because of the small size of Nagaland territory and its economic non-viability (Baruah 2003a, 2003b). This public debacle hardened his position toward the Naga. The third development was marked by the NNC’s decision to arm itself and form its own federal government in 1956. The Naga hills was declared a “disturbed area” in January 1956 by invoking the Assam (Disturbed Area) Act, 1955, and was subsequently placed under the Armed Forces (Special Powers) Act, 1958.

36It is against this backdrop that the Indian state engaged with the accommodationist Naga leaders and negotiated the terms of their political integration to create Nagaland in 1963. Three consecutive meetings of the Naga People Convention (NPC) were held in Kohima (1957), Ungma (1958), and Mokokchung (1959) to find to a settlement. While the first convention led to the integration of Tuensang into the Naga hills in 1957 under the control of the Union Ministry of External Affairs, it also highlighted the primacy given to India’s national security in managing the Naga issue. The 16-Point Agreement negotiated by an NPC sub-committee—constituted during the Mokokchung convention—and the Center in July 1960 sought to balance this concern with the Naga’s nationalist demands. This Agreement drew largely on the failed Hydari Agreement and laid the foundations for a “negotiated and shared-sovereignty” for Nagaland under Article 371A, whereby it enjoys the most robust autonomy among Indian States on matters pertaining to the ownership and transfer of land and resources (Hausing 2014, Rudolph and Rudolph 2010).

37However, the fact that Nagaland’s constitutional asymmetry is not cast in stone, but is susceptible to the vicissitudes of changing Center–state and state–substate dynamics, has become fully apparent since 2009. At state-level, Nagaland’s constitutional asymmetry pertaining to “land and resources” was challenged by the Center during the period May to June 2013 after the state laid claim to the former’s petroleum and natural gas deposits by making laws enacted by the parliament inapplicable to the state on July 26, 2010 (Hausing 2014: 99).

38The state had earlier withdrawn the Petroleum Exploration License (PEL) granted to the Oil and Natural Gas Commission (ONGC) in May 1994 following allegations that the ONGC had flouted the terms of agreement under which it extracted and produced oil from 1981 to 1994. A fresh PEL was issued by the Union Ministry of Petroleum in 2009 without obtaining the consent of, or entering into a Memorandum of Understanding with landowners. Following a large oil spill in the Changpang-Tssori area in Wokha district on the Assam–Nagaland border, which contaminated over 133 square kilometers within ONGC’s area of operation, the state suspended ONGC’s exploration and production activities on January 13, 2009 (Hausing 2014: 101). It then framed its own rules and regulations in 2012 to govern the exploration and exploitation of Nagaland petroleum and natural gas.

39To forestall the Center’s attempt to revoke Nagaland’s special control over its “land and resources”, including petroleum and natural gas, according to the claim that these constitute the “occupied field” of Parliament under Entry 53 and 54 of List I of the Seventh Schedule and section 2 of the Mines and Minerals (Development and Regulation) Act, 1957, the Naga People’s Front (NPF)-led state government resolved to claim sovereign power under Article 371A on July 22, 2013. This came 10 days after the state had held a consultative meeting with influential Naga civil communities, including the Naga Hoho (apex Naga tribe organization), Naga Students’ Federation (NSF), and Eastern Nagaland People’s Organization (ENPO) on July 12, 2013 (Hausing 2014, 2022a).

40A similar pattern of contestation over coal-mining rights emerged during 2014 when the state amended its 2006 Coal Policy. This policy empowers the Directorate of Geology and Mining to regulate and control coal-mining activities in the state. This amendment was aimed at setting up the Nagaland Coal Controling and Trading System, and the Integrated Coal Depots as institutional structures to regulate and control coal mining in the state (McDuie-Ra and Kikon 2016:264). Given the existence of indeterminate private coal traders and miners in the state, who are governed by disparate customary laws, these new regulatory structures overlap and conflict with the rights and practices of private landowners and of powerful civil society groups regarding mining rights. McDuie-Ra and Kikon (2016:263) duly capture the core issue concerned here:

However, the issue at hand is not whether coal should be mined in the first place—in other words Article 371(A) is not invoked in opposition to coal mining—rather the issue is precisely who among the circuitous network of authority and control between individuals, kin groups, village councils, and the state government authorities has the right to extract coal and trade it (emphasis added).

  • 14 The structure of the two-party competition in the NCTD temporarily fell apart in about 1992 with th (...)

41Nagaland’s political situation and the multidimensional federal dynamics it entails are unique and of interest because, unlike the largely two-party contest in the NCTD—between the Congress and the BJP (or its precursor Bharatiya Jan Sangh from 1952 to 2013, and between the AAP and the BJP since 2013),14—interparty competition in the state is more multipolar and fluid. The perpetual financial dependence of Nagaland on the Center and the complicated peace process entailed by the fragmentation of armed groups implies that the negotiation and bargaining power of the state and the social forces, including the armed groups, will continue to be considerably weakened. However, given that Nagaland remains a regionalist space dominated by state parties and powerful social forces, national parties like the Congress and the BJP are likely to be forced by electoral politics to toe the regionalist line. Paradoxically, this will make multidimensional federal dynamics amenable to forging an overlapping consensus on core Naga national interests over land and resources, including petroleum, natural gas, and coal. The deliberative and consultative mechanisms implemented by the state neutralize any possible antagonistic stand by and across parties and civil society organizations and offset the outbreak of violent conflicts between the Center and the state on the one hand, and between the state and society on the other hand. The same mechanism was also pressed into service to mobilize popular support behind Nagaland’s reluctance to extend a 33-percent reservation to women in urban local bodies during the period 2009 to 2013 and again in early 2017 by drawing on NLA’s exceptional authority on customary laws under Article 371A (Hausing 2017; Wouters 2017). All this demonstrates the multidimensional nature of frictions and tensions inherent in making constitutional asymmetry work in a regionalist space like Nagaland.

THE CASE OF THE HILL AREAS OF MANIPUR UNDER ARTICLE 371C

  • 15 Under this rubric, the seven Scottish members of Parliament in Westminster have the right to veto m (...)
  • 16 The older institutional roots of Article 371C can be traced back to 1835 when the Office of Politic (...)
  • 17 The state assembly has a total of 60 elected members.

42The substate constitutional asymmetry enjoyed since 1972 by Manipur hill areas under Article 371C is a distinctive constitutional experiment which is modeled along the lines of the West Lothian Question15 in Scotland (United Kingdom) and falls within what we call the “second-generation” models of constitutional asymmetry. As a continuum to its earlier avatar, namely the Hill Areas Standing Committee which was established after Manipur changed its political status in 1963 from being a Part C type state to a Union Territory,16 the Hill Areas Committee (HAC) is made up of 2017 members of the Manipur Legislative Assembly (MLA) elected from the hill areas. The HAC Chairman, who is elected from among its members, enjoys a cabinet ranking (Hausing 2015; Ngaihte 2022; Kshetri 2006).

43Section 4(1) of the Manipur Legislative Assembly (Hill Areas Committee) Order of 1972 entrusts “all scheduled matters” pertaining to hill areas to the HAC. It also statutorily mandates that “every bill”—other than a money bill—which “wholly or partly” affects the hill areas is to be vetted by the HAC after it has been introduced in the MLA [Section 4(2)]. The HAC is also invested with the statutory responsibility to “(a) safeguard the interest of the people of the Hill Areas, particularly through accelerated development of these areas; and (b) promote unity between the people of the Hill Areas and other areas of the State by aiming at an integrated and evenly based economic growth of those areas and augment the resources of the state as a whole” [Section 5(a) and 5(b)].

44Another novel institutional arrangement provided under this rubric is that in preparing developmental plans—both five-year and annual plans—the state is mandated to prepare separate plans for the hill areas, which can only be finalized after it has been presented before the HAC, and the latter’s views have been “taken into account” [Section 6(1)]. To ensure that this is not merely a case of tokenism, but is a serious commitment to promote the development of the hill areas, the state government is mandated to provide the HAC with “quarterly reports showing the progress of implementation of the Plan relating to the Hill Areas” [Section 6(2)].

  • 18 Naga and Zo tribal groups are represented by 20 elected Assembly members.

45However, unlike the Scottish experience in Westminster concerning the West Lothian Question, the HAC does not have the power to veto matters affecting the hill areas because it is invested with only the authority to discuss and recommend them to the State assembly. This structural constraint aside, a longitudinal overview of the workings of this constitutional asymmetry since 1972 demonstrates how partisan intertribe and interparty interests often outmaneuver the interests of the hill areas and the people living there. The polarization and competitive outbidding amongst tribal groups, namely the Naga and Zo (Kuki, Zomi, and Hmar)—who are also represented by different political parties18—often forestall the emergence of tribal solidarity and the forging of a consensus on tribal interests.

46For instance, these groups remain divided over the question of redrawing district boundaries proposed by the Ibobi Singh-led Congress government in the winter of 2016. While, for Hmar and Kuki groups, the creation of Pherzawl district out of Churachandpur and of Kangpokpi district out of Senapati served their political interests, this exacerbated the feeling of mutual distrust, on the one hand between Hmar and Zomi in the erstwhile Churachandpur district, and on the other hand between Kuki and Naga in the erstwhile Senapati district. Intertribe dissension was particularly convenient for dividing and ruling, a time-tested trick used by the colonial and postcolonial state to govern deeply divided places. The Naga have vehemently opposed district reorganizations, claiming that its smacks of majoritarian Meitei politics of dismembering the Naga in ways that perpetuate the Meitei people’s dominance over them. Given that district and tribal/ethnic boundaries overlap territorial boundaries across districts in Manipur, any attempt to unilaterally reorganize district borders without gaining the trust of the groups concerned by the reorganization is likely to perpetuate ethnic/tribal outbidding and may not be particularly amenable to peace and stability in the state.

47The emergence of a minority-BJP government led by Biren Singh after it won barely 21 of the 60 seats in the 2017 elections also has an important bearing on the autonomy of the hill areas (Hausing 2022b). While Singh’s minority government was coerced into forging a broader social and political coalition, his pet “go-to-the-hills” project facilitated the co-optation of easily influenced hill tribal leaders. The symbolic holding of a series of cabinet meetings in the hill district headquarters and the launching of several infrastructural projects, such as roads and community health centers, during Singh’s first term as chief minister (2017–2022) by adapting national projects was particularly effective as political rhetoric to bridge the hills–valley divide (Hausing 2017). The intense intraparty leadership competition and the emergence of a center of competing power led by Biswajit Singh during this term, and the rise of another center led by Konthoujam Govindas during his second term (as of 2022) forced Biren Singh to use populist and majoritarian politics to effectively trump these rival power centers and to consolidate his electoral appeal among the majority-minded Meitei constituencies in the valley areas.

48The attempt to dilute the constitution of the HAC in early September 2021 by incorporating nine elected MLA members from neighboring districts was a clear sign of this. After widespread opposition and protests in the hill areas where Biren Singh was greeted with black flags, Chief Minister Singh was forced to withdraw this controversial maneuver (Hausing 2021). Another pointer to this is a series of sacralization projects which Singh’s BJP government undertook in Chivu on the Indo-Myanmar border and in Koubru, Kangpokpi district, during the period 2017 to 2022. After laying the foundation stone in December 2017, Singh inaugurated the controversial Chandrakirti Memorial Park in Chivu in October 2022 against heavy opposition from tribal civil society organizations (The Sangai Express 2020). Drawing from the Meitei myth according to which Thangjing, a Meitei god, is intermittently sighted at this site, Singh conveniently used this as a pretext to erect the stone monolith of Thangjing, a Meitei god. Similarly, the mythical belief among Meiteis that Koubru Hill is the sacred seat of the main Meitei god Koupala and of goddess Kounu is used as a pretext to declare this hill a protected site in the state. Singh’s government also facilitated public religious pilgrimages to this site. However, this and the declaration that the Koubru range of hills is a “reserve forest” area are seen by the Kuki group as a surreptitious attempt to seize tribal lands and to erode tribal landownership rights in general, especially as the land title to this site is owned by a Kuki chief (Haokip 2021).

  • 19 While the Zo group actively pursued its demand for Sixth Schedule status until the outbreak of viol (...)

49The friction and tension in state–substate relations in Manipur, exacerbated by an aggressive populist and majoritarian push in recent times, highlight the fragile substate constitutional asymmetric status attributed to hill areas in Manipur (Piang 2019). The six district councils, set up through an act of parliament in 1971 as part of another asymmetric substate arrangement, still lack legislative and judicial powersunlike their counterparts in the Sixth Schedule areas—ensuring that autonomy remains largely illusory in the hill areas (Hausing 2015; Kshetri 2006; Ngaihte 2022). While the demand to upgrade the state’s existing autonomy is staunchly opposed by powerful social forces in the valley areas for fear that it constitutes a halfway house toward tribal statehood, the ongoing internal divisions between the Naga and Zo groups on this question19 suggest that autonomy remains a chimera. The violent demographic and territorial separation of Zo areas from Meitei areas after the outbreak of Manipur violence on May 3, 2023, which lasted almost two years, and the steadfast demand by Zo people for a separate administration in the form of a union territory with a legislature may entail a complete revision of substate constitutional asymmetry in Manipur.

CONCLUDING REMARKS

50In this article, we build on the insights offered by existing literature on “federal dynamics” to understand why and how constitutional asymmetry prompted by Article 239AA in the NCTD, Article 371A in Nagaland, and Article 371C in Manipur’s hill areas adapts to the challenges of accommodating diversities despite the inbuilt “friction and tension” to effect change in “parts” of India’s federal system. The three cases examined demonstrate how the competing logic of centralization and decentralization continues to be embedded in the Center–state/UT and state–substate dynamics of constitutional asymmetry in India and beyond. From the perspective of centralists, “excessive federalism”—which entails decentralization for constituent units of the federal polity—may unleash centrifugal forces and may compromise India’s commitment to a developmentalist state-nation building project. On the other hand, federalists in India or elsewhere not only emphasize the import of federal institutions in “holding together” diverse groups and polities with a distinctive history, and political experiences within an overarching political system, but also stressed their role in consolidating democracy. It is here that constitutional asymmetry, as a form of federalism, offers one of the most defensible democratic structures for accommodating territorially mobilized groups and diverse polities.

  • 20 This dissensus informs not only the conflict between the Indian state and Naga nationalists, but al (...)

51In polarized societies like Nagaland, Manipur, and others, the key to fostering peace and stability lies not in a reluctance to acknowledge social divisions, but in the institutional recognition and accommodation of these cleavages. The extension of democratic space for deliberation and for forging a consensus across parties and the state around core tribal/national issues, especially concerning land and resources (including petroleum and natural gas), and customary and religious practices in Nagaland, help mitigate and preempt violent confrontation and conflict not only between the Center and state, but also between the state and powerful social forces. However, the “meta-narrative dissensus”20 which persists over Article 371A and Article 371C must be acknowledged as a major source of violent conflict in both states. While independentist Naga consider that statehood under Article 371A compromises their right to self-determination, hill tribal groups in Manipur consider that Article 371C does not devolve substantive autonomy to them because the HAC, according to this institutional scale, is merely reduced to a “recommendatory” body.

52This explains why the National Socialist Council of Nagalim-IM (Isak-Muivah), an independentist armed Naga faction, not only continues to target signatories of the Sixteen-Point Agreement, 1960, as “Indian stooges” but also refuses to accept Article 371A as the “bedrock” of Naga society (Hausing 2014; 2022a). The enduring dissensus between accommodationist (those who support statehood and Article 371A) and independentist Naga (NSCN-IM and other armed factions that demand a sovereign Nagalim—greater Nagaland) continues to prompt violent and stalemated conflicts in Nagaland despite the extension of democratic space for deliberation and for forging a consensus.

53In Manipur, the aggressive push by a populist and majoritarian-government led by Biren Singh, the former CM, to either dissolve or sidestep the already weak institutional arrangement to protect the rights of the hill tribal groups, has caused violent conflicts in the state for nearly the last two years. That these aggressive majoritarian and populist politics also had limited electoral traction became evident when Singh had to resign on February 13, 2025 following backlash from his majoritarian-minded Meitei constituency and open revolt within the BJP. Despite Singh’s zealous attempt to project himself as a pabung (father)-like figure who would protect Meitei jati (society) and land from the alleged demographic threat of “Kuki illegal immigrants,” his supporters became increasingly disappointed over his inability to protect armed “village volunteers”—a euphemism for the Arambai Tenggol and proscribed Meitei armed groups—from arrest by central investigative agencies (Hausing 2025). Although Singh has stepped down from the CM gaddi (throne) for now, the consolidation of majoritarian politics and the hardening of positions across the hills–valley divide is likely to prompt conflict and instability in the State.

54Viewed from a different perspective, the inclusion of Article 371—as well as specific clauses in Article 371A and Article 371C—and Article 370 under the “Temporary, Transitional and Special Provisions” of India’s Constitution highlights the inherent vulnerability of constitutional asymmetry, making it susceptible to pressure for uniformity and ultimate dissolution. This became particularly evident after the BJP-led central government revoked Article 370 in J&K in early August 2019 as a part of its core political commitment. The promise made by Amit Shah, the Union Home Minister of India, that no change in the constitution will affect special provisions for tribal groups in Northeast India may provide temporary political reprieve.

  • 21 We are grateful to one of the referees for drawing our attention to this important aspect.

55As observed in our case study of the NCTD, interparty competition and the change in ideology of the ruling party—both at the Center and in the NCTD—especially when driven by ruthless populism, may have a deleterious impact on democratic governance founded on the principles of transparency, responsibility, and accountability. It is here that the Center and the NCTD’s struggle over control of “service” needs to be seen not only as the fallout of competitive populism, which uses “welfare of ‘aam aadmi’” as ideological constructs to justify the provisioning of public goods and welfare, but as competing visions of federal democracy. The calculated attempt by the BJP-led central government to wrest control of “services” and to use it as a lever to intimidate Kejriwal’s AAP in the February 2025 Delhi Assembly elections seemed to have paid off because the BJP won 48 seats against the AAP’s 22. Once the Center had taken control by enacting an amendment to the NCTD Act in August 2023, the limited capacity of the Atisha Marlena-led AAP government to deliver public welfare and services to Delhi citizens began to decline. Even as such projects were thwarted by the Center, the AAP’s electoral misery further deteriorated due to the mounting anti-incumbency sentiment.21 The arrest of Kejriwal and Manish Sisodia—top-rank AAP leaders—over alleged irregularities in excise policy pertaining to liquor in the NCTD severely dented the image of the AAP government. Not surprisingly, these were used by the BJP to successfully weave a political narrative which portrays the AAP as an “inefficient” and “corrupt” party.

56Although the BJP may have found a temporary solution to ensure control over “services” by successfully instituting a “double-engine government” led by CM Rekha Gupta in the NCTD, the “misfit” between asymmetric federal institutions and ideas of centralization may continue to drive “friction and tension” in India’s multilevel federal dynamics. It is precisely here that the centrality of the mutually reinforcing relationship between federalism and democracy cannot be overemphasized. After all, the enduring appeal and legitimacy of constitutional asymmetry as a normative idea and an institutional arrangement to “hold together” territorially mobilized groups and diverse groups within the federal polity in India are contingent on its ability to foster democracy.

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Notes

1 The Government of NCT Delhi controls a range of “services” under Article 239AA of the Indian Constitution, including control over bureaucracy (transfer and posting, for example) except for services related to public order, police, and land. It also has control over services such as education, water supply and sanitation, health, transport, social welfare, etc.

2 The Sixth Schedule was subsequently extended to the Tripura Tribal Areas in 1985 and to Bodoland, Assam, in 2003. It now encompasses a total of 10 Autonomous District Councils (ADCs) in Northeast India: three ADCs each in the states of Assam, Meghalaya, and Mizoram (for a total of 9 ADCs in these states), and one ADC in Tripura. See Hausing 2022a: 122.

3 The Government of National Capital Territory of Delhi (Amendment) Act, 2023, was published in the Gazette of India on August 11 and applies retrospectively from May 19, 2023. Also known as the Delhi Services Act, it grants the Lieutenant Governor wide-ranging discretionary powers concerning service matters in ways that empower the Center to exert full control over services in Delhi.

4 Because states like Nagaland and Mizoram were created without considering their financial viability, they are constantly dependent on New Delhi. Their inability to generate sufficient internal revenue to cover their expenditure increases their financial dependency on New Delhi, which amounts to over 80 percent of their revenue receipts. The cessation of Special Category State status with the end of the Planning Commission in 2014, which provided for preferential funding for these states, wherein they receive grants and a loan to a ratio of 90:10, renders their status more precarious.

5 Four distinct types of polities were inherited by India at the time of its foundation: namely the British Indian provinces that had been largely integrated into British unitary rule; Indian states/princely states which enjoyed either a sovereign or semi-sovereign political experience under British domination; the chief commissioners’ provinces that were centrally administered; and tribal territories that were either partially excluded, or excluded from the pan-Indian legislative domain.

6 As of November 2024, the eight union territories are: Andaman and Nicobar Islands; Chandigarh; Dadar and Nagar Havelli and Daman and Diu: Jammu and Kashmir; Ladakh; Lakshadweep; National Capital Territory of Delhi; and Puducherry.

7 Puducherry has a 30-member Legislative Assembly, with five members reserved for Scheduled Castes, and three members nominated by the Government of India (GoI). Thirty members are directly elected for a five-year term. The chief minister is the de-facto executive, while the Lieutenant Governor is the de-jure executive, who is directly appointed by the GoI.

8 J&K has a 119-member Legislative Assembly, with 24 seats reserved for Pakistan-administered J&K, and five nominated by the GoI.

9 Since its inception in 1980, the revocation of Article 370, the epitome of constitutional asymmetry in India, has always constituted one of the BJP’s core political projects. The only exception was during the 1999 and 2004 parliamentary elections when it was constrained by coalition politics to exclude this from its election manifesto. For a thought-provoking discussion, see Rampal 2019.

10 We are grateful to Louise Tillin for sharing her very useful notes on the recent judgements on federalism passed by the Supreme Court.

11 Our thanks go to one of the anonymous referees for drawing our attention to this aspect.

12 This agreement envisaged, inter alia, the integration of Naga-inhabited areas, the recognition and accommodation of Naga religious and social practices, social and customary procedure, and an interim arrangement for ten years wherein the GoI would act as “guardian power”.

13 This claim is rendered meaningless and unacceptable with regard to the Indian state on the grounds that it is a legitimate legatee of the British raj, of which the Naga hill district is considered to be an integral part. However, the NNC claimed that their areas had been “excluded” from the Raj and that they are entitled to the status quo ante after the temporary arrangement of a 10-year period wherein the Indian state would be the “guardian power.” This perpetuates a meta-narrative dissensus and has to date informed the Indo-Naga conflict. On this, see Hausing 2014.

14 The structure of the two-party competition in the NCTD temporarily fell apart in about 1992 with the consolidation of the Bahujan Samaj Party (BSP) as third player, which was subsequently replaced by the AAP in 2013. The consolidation of the AAP in the NCTD electoral landscape relegated the Congress to an inconsequential position, and subsequently restored two-party competition between the AAP and the BJP. For a detailed analysis, see Farooqui 2021.

15 Under this rubric, the seven Scottish members of Parliament in Westminster have the right to veto matters pertaining to Scotland which are legislated by the UK Parliament.

16 The older institutional roots of Article 371C can be traced back to 1835 when the Office of Political Agency was created by the British to regulate the “unruly” relations between the valley-based Meitei kingdom and the powerful Sukte tribe who often crossed over the “porous” and “ill-defined” southern border and caused problems of law and order in the valley. As Manipur came under British rule as of 1891, the “Future Scheme of Administration” was drafted by Lieutenant-Colonel J. Shakespear in 1907. This scheme envisaged an eight-member Darbar system wherein the Meitei king became a pliant ex-officio president, and the vice-president, invariably selected from Indian Civil Service Officers, would be directly in charge of the hill areas. Given the previous “cruel dealings” of the Meitei kings with the hill tribes and the latter’s distinctive ethnocultural identities, the British thought it inadvisable to entrust the Meitei king with hill administration. See Hausing 2015.

17 The state assembly has a total of 60 elected members.

18 Naga and Zo tribal groups are represented by 20 elected Assembly members.

19 While the Zo group actively pursued its demand for Sixth Schedule status until the outbreak of violence in Manipur on May 3, 2023, the Naga continued to half-heartedly maintain their position on this subject. Although party to the Sixth Schedule Demand Committee in Manipur since the early 2000s, their parallel demand for and commitment to Nagalim (greater Nagaland) in the Naga-dominated districts of Chandel, Kamjong, Noney, Senapati, Ukhrul, and Tamenglong may continue to entail differential political priorities in the future. See Hausing 2015.

20 This dissensus informs not only the conflict between the Indian state and Naga nationalists, but also underpins the conflict between the ranks of Naga nationalists. On this, see Hausing 2014, 2022a.

21 We are grateful to one of the referees for drawing our attention to this important aspect.

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References

Electronic reference

Kham Khan Suan Hausing and Balveer Arora, Dynamics of Constitutional Asymmetry in Indian FederalismSouth Asia Multidisciplinary Academic Journal [Online], 34 | 2025, Online since 21 October 2025, connection on 21 January 2026. URL: http://journals.openedition.org/samaj/10356; DOI: https://doi.org/10.4000/15afh

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About the authors

Kham Khan Suan Hausing

Kham Khan Suan Hausing is professor, Department of Political Science, University of Hyderabad, Hyderabad, India. He is also a Senior Fellow at the Centre for Multilevel Federalism, Institute of Social Sciences, New Delhi.
ORCID ID of Kham Khan Suan Hausing: 0000-0003-3673-6995

Balveer Arora

Balveer Arora is chairman, Centre for Multilevel Federalism, Institute of Social Sciences, New Delhi. He was a former Professor and Rector, Jawaharlal Nehru University, New Delhi.

By this author

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