This article is written by Arkadyuti Sarkar, a student from Shyambazar Law College under the University of Calcutta. This article discusses the special status given to States under the Indian Constitution.

Introduction

After going through all the Constitutional provisions granting special status to different States, it might appear as unjust and contrary to the principle of equality which has been adopted under our Constitution.

The thought might pop up in mind that when it has been well written in the Constitution that every individual or group or State has to be provided with the same types of opportunities then why provide for special status?

Well, a careful reading of the Constitution shall reveal that there is also a provision for providing special benefits or reservations for persons or groups or States who are backward or suffer from some serious issues.

These States are marred with various cultural, political, socio-economic, and other forms of problems requiring special attention. Thus, these special statuses have been provided so as to deal with and solve the problems with extra care.

Special Status Given to States

Article 370 to Article 371 J deals with these special provisions.

Temporary provisions for the State of Jammu and Kashmir

Article 370 of the Constitution deals or better said used to deal with the special temporary provisions of the State of Jammu and Kashmir.

Notwithstanding anything under the Constitution-

• The provisions of Art. 238 shall be inapplicable in relation to the State of Jammu and Kashmir;
• The legislative powers of the Parliament for Jammu and Kashmir shall be restricted to-

i) The matters which are enshrined in the Union List and the Concurrent List, which are declared by the President, after consulting the State Government of Jammu and Kashmir, of corresponding the matters in the instrument of accession.

ii) such other matters in the Union and the Concurrent list which the President may specify by order in concurrence with the State Government. Thus such legislation can only be done with the consent of the State Government in Jammu and Kashmir. For the purposes of this Article, the State Government refers to anyone who is recognized as the Maharaja of Jammu and Kashmir by the President acting on the advice of the Ministerial Council for the time being in office under the Maharaja’s Proclamation of 1948.

• The provisions of Article 1 of the Constitution and of this Article shall be applicable.
• Such other Constitutional provisions shall be applicable, subject to the alterations specified by the Presidential order. No order without consulting with the State Government shall be issued, if it relates to the Instrument of Accession of the State. Also, no such order which relates to the matters except those referred to in the Instrument of Accession shall be made without being consented from the State Government.

The Constituent Assembly may decide on any matter placed before it after it has concurred with the State Government if such matter relates to-

• The Union or the Concurrent List; or
• The Instrument of Accession.

Nothing in the subsequent provisions of this Article shall restrict the President from declaring through public notification, this Article inoperative or limit the operation of this Article. However, a recommendation from the Constituent Assembly shall be necessary before the issuance of such notification.

History of Kashmir

India got its independence on 15th August 1947, after the lapse of the paramountcy of the British crown and partition of British India into two dominions, i.e. India and Pakistan. So during that time, the Princely States were given a choice of either to accede to the Indian dominion or the Pakistani dominion or to stay independent. The majority of the Princely States acceded to India, with only Hyderabad and Kashmir deciding to stay independent.

Kashmir was a Muslim majority state under the rule of a Hindu ruler, Maharaja Hari Singh, and Pakistan sought this opportunity to annex Kashmir into its territory. On 27th October 1947, Pakistan made an intrusion by the use of invading forces into Kashmir. Maharaja Hari Singh being incapable to deal with this Pakistan backed invasion came knocking at the doors of the Indian Government and was told that only if Kashmir becomes an Indian territory only then the Indian troops can be dispatched for saving the State of Kashmir.

At this pressurizing moment in order to save the State from annihilation in the hands of Pakistan, Maharaja Hari Singh decided to sign the instrument of accession which would thereby turn Kashmir into an Indian State and thus the Pakistani invasion would amount into an invasion of India. The instrument of accession, alongside various other provisions provided for the special status mentioned under Article 370.

Present scenario post revocation

Following the revocation, in expectation of clashes and violence to spike, a virtual lockdown was imposed in Kashmir with all the communication lines cut and the leaders like Omar Abdullah and Mehbooba Mufti placed under house arrest. As a preemptive measure, Section 144 of the Criminal Procedure Code was imposed and additional security forces were deployed.

Kashmir was bifurcated into two 2 union territories: Jammu & Kashmir (with legislature); and Ladakh (exclusive of Legislature).

Special provision for the States of Maharashtra and Gujarat

According to Article 371; nothing under this Constitution abstains the President from making an order with respect to the State of Maharashtra or Gujrat, providing any special responsibility to the Governor for-

Establishing separate development boards for-

• Vidarbha,
• Marathwada, and the rest of Maharashtra,
• Saurashtra,
• Kutch, and
• The rest of Gujrat.

Provided that an annual report on the working of these boards shall be placed before the State Legislative Assembly.

1. The equitable fund allocation for the development expenses of the said areas, subject to the requirements of the entire state.
2. Providing an equitable arrangement for-

• Adequate facilities for technical education and vocational training,
• Adequate employment opportunities for the service under the State Government.

This was done for the purpose of ensuring equitable allocation of funds for meeting the developmental expenses over the said areas, an equitable arrangement to provide adequate facilities for technical education and vocational training, and adequate employment opportunities under the state government.

After the state of Bombay was divided into Maharashtra and Gujarat, people from the economically weaker regions of these newly created States started agitating on the ground that if they are separated then the fund will be reduced thereby slowing down their development. So under Article 371 of the Constitution, provision for the establishment of separate development boards for Vidarbha, Marathwada, and rest of Maharashtra and Saurashtra, Kutch, and rest of Gujarat have been made.

Special provision for the State of Nagaland

According to Article 371 A, notwithstanding anything in this Constitution-

• No Parliamentary Act in respect of the following shall apply to the State of Nagaland unless decided by a resolution of the State Legislature-

i) religious and social practice of the Nagas,

ii) customary law and procedures of the Nagas,

iii) administration of civil and criminal justice in accordance with Naga customary laws,

iv) the transfer of land ownership, and its resources. 

• The Governor of Nagaland shall have special responsibility and powers to deal with the internal disturbances which are to be exercised after consulting the Ministerial Council.

If any question arises regarding any matter on which the Governor has to act under this sub-clause, he shall have the ultimate discretion, and the validity of anything done by him in this regard shall be unquestionable.

If the President, after receiving a report from the Governor that the special responsibility is no more required, then he may order through a notification on cessation of such responsibility from a specified date.

• While recommending with respect to any demand for a grant the Governor shall ensure that any money provided from the Union Government’s consolidated fund is included in the demand and not for any other demand.
• The Governor may by public notification specify the establishment of a regional council for Tuensang district, with 35 members for such council. He shall also at his discretion make provisional rules for 

i) the composition of the regional council and the selection manner of its members;

ii) the qualifications for being selected and becoming the council member;

iii) the term for offices and the remunerations of the council members;

iv) the procedure and business conduct of the council;

v) appointment of officers and staffs for the council, and their service conditions;

vi) any other matters relating to the Constitution and proper functioning of the council.

Notwithstanding anything under the Constitution, the Governor may after being recommended by the regional council, shall specify the following through public notification –

1. That he shall carry on the administration of the Tuensang district.
2. That he shall equally allocate the Central’s money between the Tuensang district and the rest of the State.
3. That no legislative act of the State Assembly shall be applicable on the Tuensang district, unless he directs through a public notification in this regard, on being recommended by the regional council. However, any such direction by the Governor shall have retrospective effect.
4. He may make regulations for the peace, progress, and good government of the Tuensang district, and such regulations may repeal or amend any Parliamentary Act or other existing law of the district with retrospective effect.
5. One representative member from the Tuensang district in the Legislative Assembly shall be appointed by the Governor and the Chief Minister as Minister for affairs of the district. The appointed Minister shall deal with, and shall be able to directly access the Governor in matters relating to the Tuensang district.
6. Notwithstanding any provisions under this article, the final decision relating to any or all matters of the Tuensang district shall be taken by the Governor at his discretion.
7. In the Articles 54, 55, and 80(4), reference to each or all the elected members of a State Legislative Assembly shall include references to any or all members of the Legislative Assembly of Nagaland.

If any difficulty arises in effecting any provisions under this article, the President is empowered to order anything which he deems necessary for removing such difficulty. However, no such order can be made after 3 years after the formation of the State of Nagaland.

Also, under this article;

• the Kohima,
• The Mokokchung, and
• The Tuensang,

shall have the same meanings as provided in the State of Nagaland Act, 1962.

These provisions were included in the Constitution after a 16-point agreement signed between the Center and the Naga People’s Convention in 1960, leading to the creation of the State of Nagaland in 1963. It also gives the Governor a special responsibility of law and order situations in Nagaland, especially in case of internal disturbances occurring in the Naga Hills-Tuensang Area.

Special provision for the State of Assam

According to Article 371 B; notwithstanding anything under this Constitution, the President may specify by order, with respect to the State of Assam, the provision for constitution and functions of a committee of the State Legislative Assembly which shall consist of elected Tribal representatives of the Assembly and such other Assembly members as may be specified in the order. Also, the order shall specify the modifications to be made in the procedural rules of that Assembly.

This provision was included in the Constitution after the representatives of the Central Government and the leaders of the Assam movement went on to sign a Memorandum of Settlement (Assam Accord) in New Delhi on the 15th August 1985. A 6-year agitation campaign demanding the identification and deportation of illegal immigrants was launched by the All Assam Students’ Union (AASU) in 1979 which concluded with the signing of the Assam Accord.

Following are some of the settlements reached through the Assam Accord between the Government of India and the leaders of the Assam movement:

• The leaders of the Assam movement agreed to accept all the migrants who had entered into the State prior to 1st January 1966. 
• The Government of India identified various concerns of the Assamese people and agreed to revise the electoral database on that date.
• The GOI agreed to secure the international border between India and Bangladesh located at Assam by erecting walls, placing barbed wires, deploying security forces, etc.
• All police charges against the leader of the Assamese movement from the initiation of the movement until the signing of the accord were withdrawn.

Special provision for the State of Manipur

According to Article 371 C; notwithstanding anything in the Constitution, the President may by an order in respect of the State of Manipur, make provisions for constituting and functioning of a Legislative Committee which shall consist of the Assembly members belonging from the hilly regions.

The Governor shall annually or depending upon the Presidential requirement, make a report to the President regarding the administration of the hilly regions of the State, and the executive power of the Central Government shall extend to directing the State on the administration of those regions.

Here “Hill regions” refer to those regions which are to be declared as such in the Presidential order.

Special provisions relating to the State of Andhra Pradesh or the State of Telangana. Establishment of Central University in Andhra Pradesh

According to Article 371 D; the President may by order for these two States, provide, for equal opportunities and facilities for people from different regions of these States, in matters relating to employment and education.

An order so made by the President shall contain the following particulars-

1. Requiring the State Government to organize different classes of posts in the civil services of these States;
2. Specify any part or parts of the State for being regarded as the local area for various purposes;
3. Specifying the extent, the manner, and the conditions, subject to which the reservation preferences shall be given or made in favor of the domicile students in the local area.

The President may order for the establishment of an Administrative Tribunal for these States to exercise such jurisdiction, powers, and authority as may be specified in the order.

Any order made by the President may-

1. Authorize the Administrative Tribunal to receive representations for grievance redressal and make necessary orders for dealing with them;
2. Contain necessary provisions relating to power, authorities, and procedures of the Administrative Tribunal;
3. Provide for the transfer of the Administrative Tribunal for certain classes of proceedings;
4. Contain necessary supplemental, incidental, and consequential provisions as the President may deem fit.

The order of the Administrative Tribunal on any case shall be effective after the same has been confirmed by the State Government, or on the expiration of a period of 3 months from the date of its issuance. However, any order made by the Tribunal can be quashed by a written order of the State Government, before it becomes effective.

Every such quashing order by the State Government shall be laid before both houses of the State Legislature.

The High Court of the State shall have no superintending power over the Administrative Tribunal and no court, excepting the Supreme Court, shall have any jurisdiction or power over the matters of the tribunal.

The President was satisfied that the continued existence of the Tribunal as unnecessary may pass an abolishment order.

No appointment, posting, promotion, or transfer shall be deemed illegal or void merely because such was not made in accordance with any existing law, providing for any requirement as to the domicile of the State of Andhra Pradesh.

The provisions of this Article and any Presidential order shall have effect notwithstanding anything in any other Constitutional provision or any other existing law.

The provisions under Article 371 D extends to both the State of Andhra Pradesh and the State of Telangana.

According to Article 371 E, the Parliament may by law provide for the establishment of a Central University in the State of Andhra Pradesh.

Special provisions for the State of Sikkim

According to Article 371 F;

• The State Legislative Assembly shall consist of at least 30 members;
• From the date of the commencement of the Constitution Amendment Act, 1975 –

i) the Sikkim Assembly shall be deemed the Legislative Assembly of the State;

ii) the sitting members shall be deemed as the duly elected representatives of the Legislative Assembly; and

iii) the State Legislative Assembly of Sikkim shall have the same powers of a State Legislative Assembly under this Constitution;

• In the case of Sikkim, the State Assembly shall be formed for a period of 4 years as opposed to 5 in case of other States;
•  The State of Sikkim shall have one seat in the lower house of the Parliament;
• The representative of the lower house for the State of Sikkim shall be elected by the members of the State Legislative Assembly;
• Parliament may provide for reservation for a certain number of seats in the State Assembly for sectional representations from the Sikkimese population;
• The Governor of Sikkim shall have special responsibility for peace and equitable arrangement to ensure social and economic development of different sections of the Sikkimese population;
• All properties located within the State border or outside shall vest in the State Government;
• The High Court functioning as such within the territories of the state shall be deemed as the High Court of the State on the day of appointment; same shall be the case with the officers irrespective of the executive or judicial; and the existing laws operating within these territories;
• Neither the Supreme Court or any other Court shall have the jurisdiction in respect of any dispute arising out of any treaty, agreement, or any other engagement relating to Sikkim which was entered into with the Government of India before the day of appointment;
• The President may by a public notification order, may extend any enactment existing in any Indian State to the State of Sikkim;
• The President is empowered to issue any order for resolving any dispute, which may arise while applying any provisions under this Article to the State of Sikkim. However, such an order cannot be issued after two years from the date of the appointment.
• All the things are done or actions taken within the state of Sikkim shall be valid as long as they are done with the Presidential assent and conform with the Constitutional provisions.

Special provision relating to the State of Mizoram

According to Article 371 G;

• No Parliamentary Act in respect of the following shall apply to the State of Mizoram unless decided in a resolution by the State Assembly of Mizoram –

i) religious or social practices of the Mizos,

ii) customary and procedural laws of the Mizos,

iii)administration of civil and criminal justice in accordance with the Mizo customary law,

iv) land ownership and transfer.

The State Assembly of Mizoram shall consist of at least 40 members.

Special provision for the State of Arunachal Pradesh

According to Article 371 H, notwithstanding anything under the Constitution,

1. The Governor shall be responsible with respect to law and order of the State of Arunachal Pradesh and in the discharge of other related functions and shall exercise his individual judgment after consulting the Ministerial Council. If any question arises in relation to this regarding the authority of the Governor, the decision of the Governor shall be deemed ultimate. Also, if the President is satisfied that the Governor does not require the special responsibility anymore, then he shall order the cessation of such responsibility from a date specified in the order.
2. The State Legislative Assembly of Arunachal shall consist of at least 30 members.

Special provision relating to the State of Goa

According to Article 371-I, the legislative assembly of this State shall consist of at least 30 members.

Through this special status, the State Government of Goa has been empowered to separately legislate on the dealings of private property by the Goans. 

Special provisions for the State of Karnataka

According to Article 371 J; the President may, by order with respect to this State, provide the Governor with special responsibility for-

1. Establishment of a separate development board for the Hyderabad-Karnataka region with a provision for the placement of the annual report of its working, before the State Legislative Assembly;
2. Equitable fund allocation for meeting development expenses over the said region;
3. Equitable opportunities for people of the said region in relation to public employment, education and vocational training.

An order for providing such equal opportunities may provide for-

1. Reservations of seats in educational and vocational institutions of the said region for domiciled students;
2. Identifying posts or classes of posts under the State Government in the said region for the people domiciled by birth, for their direct recruitment or promotion.

Continuation of existing laws and their adaptation

According to Article 372, notwithstanding the repeal of the enactments under Article 395 of the Constitution but subject to the other provisions of this Constitution, all existing laws in the territory of India immediately preceding the commencement of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in existence until altered or repealed or amended by a competent Legislature or other competent authority.

For the purpose of bringing the provisions of any existing law within the territory of India into accord with the Constitutional provisions, the President may by order make such adaptations and modifications, either by repeal or amendment, as may be necessary or expedient.

Nothing in the preceding proviso shall-

1. Empower the President in adapting or modifying any law after the expiration of 3 years from the date of commencement of this Constitution; or
2. Prevent any competent Legislature or authority from repealing or amending any law which has already been done by the President.

The expression “law in force” in this Article shall include a law passed or made by a legislature or other competent authority within the Indian territory before the commencement of this Constitution and not previously repealed.

Any law passed or made by a legislature or other competent authority within the Indian territory which had immediate extra-territorial, before the commencement of the Constitution.

Nothing in this article shall be construed as a continuation of any temporary existing law beyond the date fixed for its expiration, or the date on which it would have expired if this Constitution had become enforceable.

An Ordinance promulgated by the Provincial Governor under Section 88 of the Government of India Act, 1935, and in force immediately preceding the commencing operation of this Constitution shall, unless withdrawn by such Governor, cease to operate at the expiration of 6 weeks from the first meeting after such commencement of the State Legislative Assembly, functioning under Article 382 (1).

Presidential powers to adapt laws

According to Article 372 A, for the purposes of bringing the existing legal provisions in India or in any part, immediately preceding the commencement of this Constitution, in conformity with the provisions of this Constitution, the President may by an order made before the 1st day of November 1957 make such legal adaptations and modifications, either through repeal or amendment, and provide that such law shall, become effective subject to the adaptations and modifications so made, and any such adaptation or modification shall be unquestioned before the judiciary, from such date as may be specified in the order.

Nothing under this Article shall prevent a competent legislature or other authority from repealing or amending any law adapted or modified by the President.

Presidential to make order in respect of persons under preventive detention in certain cases

According to Article 373, until provision is made by Parliament under Article 22(7), or until the expiration of a year from the commencement of this Constitution, this article shall be effective for making reference to the Parliament under Article  22(4) and 22(7).

Conclusion

There emerged a lot of controversies in the year 2019 after the special status of the State of Jammu and Kashmir under Article 370 was withdrawn by abrogation. The Central Government had made the abrogation after moving a draft resolution at the Rajyasabha (Upper House), which introduced The Constitution (Application to Jammu & Kashmir) Order, 2019. 

The Order stated that all the Constitutional provisions shall be applicable in relation to the State of Jammu and Kashmir. On the same day, the order was issued by the President. Thus ended a long term controversy related to providing the special status to Kashmir and a new controversy emerged as to the procedural legality of the order.

With the special status of the State of Jammu and Kashmir being revoked there emerges a new hope for us that someday the remaining special provisions for the rest of the States shall also be withdrawn. After all, special treatment to anyone, even to a State is repugnant to the essence of a democratic nation, where each and everyone has been ensured equality.

References

1. Manorama Year Book 2020
2. The Constitution of India (101st Amendment) Act, 2016
3. https://www.financialexpress.com
4. https://www.drishtiias.com

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