Special Autonomous Provisions: Uniting States in a Diverse Nation

Aayushi Khurana[1]

Special Provisions for some states is a feature is an asymmetric federal feature of the Indian Constitution. The Constitution with the strong unitary features in order to protect the country in an emergency situation, has entrusted exuberant power to the Centre to legislate on a matter enumerated in the state list if Rajya Sabha authorizes the Parliament to do so.[2]Articles 370 and 371 grants autonomy to some states in areas where law created by parliament does not apply.  This differentiates people on the basis of which constituent state of the country they reside in. The question remains whether there is a reasonable nexus between differentiation or classification amongst the people of different states and the objective that needs to be attained by giving autonomy to such states. For this purpose, there is a need to understand why such special status has been granted to these states and how it protects unity and integrity of India rather than threatening it.

Articles 371-A and 371-G states that the Acts of Parliament with respect to religious, social practice, Naga and Mizo customary procedural law, administration of civil and criminal justice, ownership and transfer of land would not apply to the state of Nagaland and Mizoram unless adopted by the State Legislative Assembly.[3] It safeguards the independence of Nagas, Mizos and their culture without interfering in their internal affairs for the purpose of guaranteeing unity in diversity and justice to tribes regulated by custom and religious beliefs.  This provision compensates for initial inequalities in the social system.[4]

Under Articles 371-B/C Assam and Manipur are required to set up a committee in their Legislative Assemblies which will be constituted by the members elected from Tribal areas and hill areas respectively. It is intended that such committees would consider the bills introduced with the point of view of the areas they represent.

Every special provision is peculiar to the historical background of that state.  Article 371 D provides for equitable opportunities for employment, education and career in public services for the development of backward areas especially Telangana, in the State of Andhra Pradesh. These provisions existed to avoid the disintegration of Andhra Pradesh into Telangana (which actually did split) to try to promote unity between them. The Governor of Arunachal Pradesh has the “special responsibility” to control “law and order” situation by acting on the advice of his council of ministers and neither on the advice of Central Government nor the President by way of which he has the capability of diluting state government’s power and thus, not reflecting autonomy.

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Even under Article 371, the governor has “special responsibility” for development of some backward areas in Maharashtra and Gujarat and make equitable arrangements for employment and education in that area.

The Constitution makers were aware of Right to Equality of states which existed in the American and the Australian Constitutions. Even when new states were added to the Union, it was considered that all the states must have equal power and rights and no condition which creates inequality should be imposed by the Union. [5]But, they never ruled out the possibility of granting autonomy to some states for the purpose of solving their internal disseminations, and that they should rather look after their own constituencies rather than pleasing Centre. [6] This kind of asymmetrical federation also exists in Canada, where some states are guaranteed some privileges which distinguishes them from other constituent states.  They are granted such status either due to the internal conflict situation or to enact laws that suit their culture and regional practices. [7]

Now, the question stands whether the terms and conditions while admitting a state into the union are justifiable even when such terms establish a system of government different from what the system envisages based on right to equality.

When Sikkim was integrated in India, it was given a reservation of one seat in Lok Sabha and Rajya Sabha and parliament has been given the power to fix the number of seats in the Legislative Assembly and reserving it for different sections of people in the state to promote and protect their rights and interests. This question put forward before the Supreme Court was whether such reservation was violating the basic structure of democracy, the principle of republicanism and Article 14. The Court stated that it is the historical considerations and the inequalities that had existed in the past that justify such imbalance. The reservation was afforded to those people as they had played a significant role and contributed to Sikkim culture and political development.[8]

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The classification of states or autonomy granted to them cannot be said to be arbitrary if the classification is reasonable and by virtue of such classification, the object of the statute is being achieved.[9] The states mentioned hereinabove have been granted autonomy status to honour the agreements they entered into while integrating with India. It is to protect their culture which is enshrined under Article 29, profess and practice their religion which exists under Article 25, to prevent the internal conflict situation and to cater to their historical background. Therefore, the classification amongst these states cannot be said to be arbitrary. What needs to be answered is whether such classification can adversely affect unity of India.

Unlike the equal footing doctrine of states that finds place in USA, the limitation on the terms of admitting a state into the union and eventually making them stand at an equal footing doesn’t apply to India. As under Article 2, the Union has wide powers to admit a new state “on such terms and conditions, as it thinks fit” but at the same time this freedom should not be used to override the overall constitutional scheme. For example: to allow a state to be under the control of a monarch when the country follows democratic system of elected government. Terms must not be inconsistent with the basic structure. The conditions under which each state is admitted need not be the same. The rationale used while incorporating terms for different states should keep in mind the “unity and integrity” of the nation, which is again a basic feature. 

Affording cultural protection to various communities has always been considered fundamental to the background of the nation and has the capability of uniting the country.[10]India, because of diversity of its culture has always been considered as a threatened spot due to divisive forces of linguism, communalism and regionalism. Unity in diversity has at all times been considered as an important tenet of Indian democracy where the twin objective of promoting unity and protecting distinctiveness of each culture is sought to be met. It has been held that “Appropriate classification may in very many cases from the very core of equality and promote unity in the true sense amidst diversity.” Affording protection to different cultures and promoting their interests had always been a prime consideration of Constitution makers. Such special guarantee, for their protection was considered important for maintaining unity and integrity of India. [11]

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As for the states that have been afforded special category status where economic benefits were being granted via grants and budget allocation to some states based on their backwardness and hilly terrain, the benefits are being removed according to the 14th Finance Commission report. This in turn strengthens the unity amongst the states as the asymmetry or discrimination was being made on a political basis as to whom such status must be granted. Many states had begun demanding special category status which could result in put developed state in a minority and decrease their support from Centre. Thus, there is a need for development of a new system for allocation of Centre’s resources.[12]

Conclusion

The author is of the view that autonomous status afforded to abovementioned states is justified because of the special circumstances existing in these states which reasonably distinguishes them from states which do not have such autonomy. This promotes unity within the nation while allowing a state to promote its culture. These provisions are peculiar to the special cultural circumstances in India that allow for harmonious existence.


[1] Student, Symbiosis Law School, Pune.

[2] INDIAN CONST. art. 249.

[3] The State of Nagaland & Anr v. Smti Rosemary Dzuvichu, 2012 (4) GLT 744.

[4] M. Govinda Rao & Nirvikar Singh, Integration of North-Eastern Hill States, Asymmetric Federalism in India (November 27, 2019), https://pdfs.semanticscholar.org/f0ba/726b82ad39058a2319e1a8864186dd7fc14d.pdf.

[5] P.T. Chackoo, Constituent Assembly Debates (November 27, 2019), http://cadindia.clpr.org.in/constitution_assembly_debates/volume/11/1949-11-21?paragraph_number=112%2C111%2C119%2C118#11.161.%20112.

[6] V.S. Sarawate, Constituent Assembly Debates (November 27, 2019), http://cadindia.clpr.org.in/constitution_assembly_debates/volume/11/1949-11 24?paragraph_number=75#11.164.%2075.

[7] Dr. Dhanabir Laishram, Could Federalism Be The Real Solution Of NE India’s Problem Of Insurgency (November 27, 2019), http://epao.net/epSubPageExtractor.asp?src=education.Scientific_Papers.Could_Federalism_Be_The_Real_Solution_Of_NE_India_Problem_Of_Insurgency_Part_1.

[8] R.C. Poudayal &Anr. v. Union of India & Ors., AIR 1993 SC 1804.

[9] Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873.

[10] Dr. Pradeep Jain Etc vs Union of India and Ors. Etc, AIR 1984 SC 1420.

[11] Bal Patil & Anr vs Union of India & Ors, (2005) 6 SCC 690.

[12] Zia Haq, “special status” isn’t feasible anymore (November 27, 2019), https://www.hindustantimes.com/india-news/why-special-status-for-states-isn-t-feasible-any-longer/story-7ypmYE6rpDVYLIoV0tz0uN.html.