SPECIAL PROVISIONS TO STATES
1. Background
- The Sangh Parivar has long argued that the special status accorded to Jammu & Kashmir in the Constitution has prevented its "full integration" into the Indian Union.
- Prominent among the "special privileges" available to J&K, the only Muslim-majority state in the country, is the ban on non-residents from acquiring property in the State and voting in the Legislative Assembly elections, both of which are under challenge in the Supreme Court in a case against the constitutional validity of Article 35A.
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Jammu & Kashmir is not the only state for which special provisions have been laid down in the Indian Constitution a wide range of safeguards are available to as many as 11 other states, listed in Articles 371, 371A to 371H and 371J.
Article 371I deals with Goa but does not include any provision that can be termed "special".
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2. Article 370
- In 1947, Jammu & Kashmir negotiated the terms and conditions of its entry into the Indian Union.
- It acceded to the Union on Defence, Foreign Affairs and Communication, but wanted its Constitution to be drafted by its Constituent Assembly.
- Article 370, which determines the contours of J&K's relations with the Centre and exists as the constitutional cord between J&K and New Delhi, was introduced in the Indian Constitution after Prime Minister Jawaharlal Nehru and J&K Prime Minister Sheikh Mohammad Abdullah negotiated it for five months between May and October 1949.
3. Article 35A
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Article 35A, which empowered the J&K Constitution to define "permanent residents" of the state is an offshoot of Article 370 of the Indian Constitution.
It was added to the Constitution through The Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President under Article 370.
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4. Special Provisions
- While the special provisions laid down in Article 371, 371A-H and 371J are not as far-reaching as Article 370, the existence of these provisions shows that other princely states, too, negotiated the terms and conditions of their entry into the Union or sought special constitutional protections given their unique needs and conditions.
- Each of these constitutional provisions is rooted in historical reasons.
| One important difference between Articles 370 and 371 and Articles 371A-H and 371J, is that while the latter set of provisions was incorporated into the Constitution by Parliament through amendments under Article 368 (which lays down the "power of Parliament to amend the Constitution and procedure therefor"), Articles 370 and 371 have been part of the Constitution from the time of its commencement on January 26, 1950. |
5. Maharashtra & Gujarat (Article 371)
- "Special responsibility" to the Governor to establish "separate development boards" for "Vidarbha, Marathwada and the rest of Maharashtra" and Saurashtra and Kutch in Gujarat;
- "equitable allocation of funds for developmental expenditure over the said areas", and
- "equitable arrangement providing adequate facilities for technical education and vocational training and adequate employment opportunities" under the state government.
5.1 Nagaland (Article 371A, 13th Amendment Act, 1962)
- Parliament can't legislate in matters of Naga religion or social practices, the Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of land and its resources, without the concurrence of the Legislative Assembly.
- This provision was inserted in the Constitution after a 16-point agreement between the Centre and the Naga People's Convention in 1960, which led to the creation of Nagaland in 1963.
- Also, there is a provision for a 35-member regional council for the Tuensang district, which elects the Tuensang members in the Assembly.
- A member from the Tuensang district is Minister for Tuensang Affairs: Governor has the final say on Tuensang-related matters.
5.2 Assam (Article 371B, 22nd Amendment Act, 1969)
President may provide for the constitution and functions of a committee of the Assembly consisting of members elected from the tribal areas of the state.
5.3 Manipur (Article 371C, 27th Amendment Act, 1971)
- President may provide for the constitution and functions of a committee of elected members from the Hill areas in the Assembly; entrust "special responsibility" to the Governor to ensure its proper functioning.
- The Governor has to file a report every year on this to the President.
5.4 Andhra Pradesh & Telangana
(Article 371D, 32nd Amendment Act, 1973; substituted by the Andra Pradesh Reorganisation Act, 2014)
- President must ensure "equitable opportunities and facilities" in "Public employment and education to people from different parts of the state";
- he may require the state government to organise "any class or classes of posts in the civil service of or any class or classes of civil posts under, the State into different local cadres for different parts of the State" and allow them.
- The President has similar powers vis-a-vis admissions in any university or state government-run educational institution.
- Also, he may provide for the setting up of an administrative tribunal outside the jurisdiction of the High Court to deal with issues of appointment, allotment or promotion in state civil services.
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Article 371E allows for the establishment of a university in Andhra Pradesh by a law of Parliament. But this is not a "special provision".
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5.5 Sikkim (Article 371F, 36th Amendment Act, 1975)
- The members of the Legislative Assembly of Sikkim shall elect the representative of Sikkim in the House of the People.
- To protect the rights and interests of various sections of the population of Sikkim, Parliament may provide for the number of seats in the Assembly, which may be filled only by candidates from those sections.
- Governor shall have "Special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population".
- All earlier laws in territories that formed Sikkim shall continue and any adaptation or modification shall not be questioned in any court.
5.6 Mizoram (Article 371G, 53rd Amendment Act, 1986)
Parliament cannot make laws on "religious or social practices of the Mizos, Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Mizo customary law, ownership and transfer of land unless the Legislative Assembly by a resolution so decides".
5.7 Arunachal Pradesh (Article 371H, 55th Amendment Act, 1986)
- The Governor has a special responsibility for law and order and "he shall, after consulting the Council of Ministers, exercise his judgment as to the action to be taken".
- Should a question arise over whether a particular matter is one in which the Governor is "required to act in the exercise of his judgment, the decision of the Governor in his discretion shall be final" and "shall not be called in question"?
5.8 Karnataka (Article 371J, 98th Amendment Act, 2012)
- There is a provision for the establishment of a separate development board for the Hyderabad-Karnataka region, the working of which will be reported annually to the Assembly; There shall be
- "equitable allocation of funds for developmental expenditure over the said region"
- "equitable allocation of funds for developmental expenditure over the said region"; and
- "equitable opportunities and facilities" for people of this region in government jobs and education.
- An order can be made to provide for reservation "of a proportion" of seats and jobs in educational and vocational training institutions and state government organisations respectively in the Hyderabad-Karnataka region for individuals who belong to that region by birth or domicile.
For Prelims & Mains
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For Prelims: Special Provisions, Article, 370, Article 35A, Article 371A-H, Article368, Andhra Pradesh & Telangana, Goa, Mizoram, Maharashtra & Gujarat, Karnataka, Nagaland, Sikkim, Arunachal Pradesh, Manipur, Assam.
For Mains:
1. What are Special Provisions? Discuss the Constitutional Provisions concerning Jammu and Kashmir (250 Words)
2. How Temporary and Transitional are different from Special Provisions. Comment (250 Words)
3. Discuss the various special provisions listed for various states in the Indian Constitution. (250 Words)
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Source: The Indian Express
