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In Constitution, a range of ‘special provisions’ for states other than J&K, too

Part XXI of the Indian Constitution, ‘Temporary, Transitional and Special Provisions’, includes, apart from Article 370 — Temporary Provisions with respect to the State of Jammu and Kashmir — special provisions for 11 other states, listed under Articles 371, 371A-H, and 371J.

Written by Muzamil Jaleel |
Updated: September 6, 2017 1:36:10 pm
Special provisions, Mehbooba Mufti, Home Ministry, Jammu & Kashmir, Article 371, Articles 371A-H, and 371J, Special State, India News, Indian Express Union Home Minister Rajnath Singh with Chief Minister of Jammu and Kashmir, Mehbooba Mufti during a meeting in New Delhi on Tuesday. (Source: PTI)

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, are 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.

However, 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.

Art 371I deals with Goa, but does not include any provision that can be termed ‘special’.

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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 own Constitution, to be drafted by its own Constituent Assembly. Art 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.

Art 35A, which empowered the J&K Constitution to define “permanent residents” of the state, is an offshoot of Art 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 Art 370.

While the special provisions laid down in Art 371, 371A-H, and 371J are not as farreaching as Art 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 in view of their unique needs and conditions. Each of these constitutional provisions is, in fact, 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 were incorporated into the Constitution by Parliament through amendments under Art 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.

(Art 371)

“Special responsibility” to 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”; “equitable arrangement providing adequate facilities for technical education and vocational training, and adequate opportunities for employment” under the state government.

(Art 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.

(Art 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.

(Art 371H, 55th Amendment Act, 1986)

The Governor has a special responsibility with regard to law and order, and “he shall, after consulting the Council of Ministers, exercise his individual 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 individual judgment, the decision of the Governor in his discretion shall be final”, and “shall not be called in question…”.

(Art 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 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 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.

(Art 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.”

(Art 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.

(Art 371D, 32nd Amendment Act, 1973; substituted by the Andhra 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 a 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 allot them. The President has similar powers vis-à-vis admissions in any university or state government-run educational institution. Also, he may provide for 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. [Art 371E allows for the establishment of a university in Andhra Pradesh by a law of Parliament. But this is not really a ‘special provision’.]

(Art 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”; 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.

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