Special provision for some states: a parasite on unity of the federal India

Gaurav Mishra[1]

Aristotle about 2000 years ago gave his theory of justice, in which he laid down the principle of equality that, ‘equals must be treated equally while unequal’s unequally’.[2] This theory was also reflected in the thinking of constitutional makers as they had recognised the unequal status of different states, thus there was felt a need for an unequal treatment of states by granting special provisions to certain states in the constitution. This was done so that the law would accustom itself as per the regional and political conditions of the state. It was the need of that time in view of the constitutional makers to make such provisions to ensure stability and unity of the country.

But as the time passed and with change in the sphere of conditions prevailing in the political and regional arena of different states, the above-mentioned principle became ambiguous. The provisions which were laid down at the time of framing of the constitution to maintain the unity and stability of the nation, now seems to be developed into a parasite which is harming the unity and stability of the country.

Special provisions for certain states as mentioned in the constitution[3]

The constitution of India introduced special provision for certain states like Arunachal Pradesh, Assam, Nagaland, Mizoram, Jammu and Kashmir, Sikkim, Uttarakhand, Himanchal Pradesh, Tripura, Meghalaya, Manipur. Special provisions in some or the other form has been enlisted for these states from Article 370 to 371J. Some were instituted by the constituent assembly while others through the amendment in the Constitution from time to time.

To analyse the problem, we must clearly know what these sections talk about. Thus, there details are as follows:

Jammu & Kashmir: article 370

The Indian state of Jammu & Kashmir has been provided with special status under Article 370 which is temporary provision granting special autonomous status to Jammu & Kashmir. As per this Article 370 except for defence, foreign affairs, finance and communications, the Union Legislature needs the state government’s concurrence for applying all other laws in the state.

Also Read  Infringement of Medical Data Privacy– A Threat to Human Rights

• They have different laws for citizenship, ownership of property, and fundamental rights, as compared to other Indians. Thus, other Indian citizens cannot purchase land or property in Jammu & Kashmir.

As per this article, the Centre also has no power to declare financial emergency under Article 360 in the state. Though, an emergency in the state can only be declared in case of war or external aggression or at the request of the state.

Maharashtra & Gujarat: article 371

As per this Article a Special responsibility is assigned to Governor to establish “separate development boards” in the following regions: “Vidarbha, Marathwada, and the rest of Maharashtra”, and Saurashtra and Kutch in Gujarat. The state government has also to look after the equitable arrangement providing adequate facilities for improving skills like technical education and vocational training, and enough opportunities for employment.

Sikkim: art 371f through 36th amendment act, 1975

In this Article a special provision in relation to elections in Sikkim was made that the representative of Sikkim in the House of the People must be elected byte members of the legislative Assembly of Sikkim. Also, to protect the rights and interests of various sections of the population of the state, union legislature may provide for the number of seats in the state Assembly, which may be filled only by candidates belonging to those sections

Assam: article 371b through 22nd amendment act, 1969

President by his order may provide for the rules and functions of a committee of the Assembly comprising of members elected from the tribal areas of the Assam state.

Arunachal Pradesh: article 371h through 55th amendment act, 1986

The Governor holds the special responsibility related to the law and order, and should, exercise his individual judgment for taking actions after consulting the Council of Ministers. The decision of the Governor in his discretion is always final and cannot be questioned.

Nagaland: article 371a through 13th amendment act, 1962

This Article provides for special provisions for Naga community. Parliament is not empowered to legislate in matters related to the 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.

Also Read  Untouched Aspect of Criminal Victimization

Mizoram: art 371g through 53rd amendment act, 1986

This Article provides for special provisions for Mizo community. Parliament cannot make laws unless the Legislative Assembly decides so by a resolution regarding the religious or social practices of the Mizo community and its customary laws and procedures, administration of criminal and civil justice etc.

Manipur: article 371c through 27th amendment act, 1971

President can provide for the constitution and functions of such committee consisting of elected members for the Legislative Assembly; having responsibility towards the Governor for ensuring its proper functioning. The Governor must file a report every year regarding this to the President.

Andhra Pradesh & Telangana: Art 371D via 32nd Amendment Act, 1973 and later substituted by the Andhra Pradesh Reorganisation Act, 2014

President must make sure that equitable opportunities and facilities are available for public employment and education to people from different parts of the state; he may require that the state government also organise any such class or classes of posts in a civil or other public service into different local cadres for different parts of the State and allot them accordingly. Also, he may provide for setting up of an administrative tribunal which may be outside the jurisdiction of the High Court of the state to deal with issues of appointment, allotment or promotion in civil services of the state.

Karnataka: Art 371j through 98th amendment act, 2012

A Special provision regarding establishment of a separate development board in the Hyderabad region of Karnataka working of which would be reported annually to the state Assembly there should be an equitable allocation of funds for developmental expenditure over and equitable opportunities and facilities for the people of this region in government jobs and education. There has been also made a provision for reservation of a proportion of seats in the educational and vocational training institutions and state government organisations can be made.

Are these special provisions acting as a parasite on unity of India?

Though Federalism is deeply incorporated in Indian Administration by the Constitution and it is also necessary for a country like India for proper governance. But India is not truly federal but is a Quasi-federal[4] country, thus, our constitutional makers were of the view that to maintain the Unity of India it is very necessary to make the union strong in comparison to state because India as declared by Constitution[5] is a Union of states and to maintain this union it was necessary that there is a central binding force which would strongly unite all the states under one roof of Indian Union.

Also Read  Article 368: Keeping Constitution Alive

Though, the constitutional makers have make it sure that the union remains powerful over states but due to the political conditions prevailing at the time of Independence, it was felt necessary by them to provide special status to states especially in the case of Jammu & Kashmir. This special status has now developed into a problem harming unity in following ways:

  • Due to special status accorded to the state of Jammu & Kashmir has led other states to demand such states and the Union is not able to justify its denial of such a status. This is creating a feeling of distrust among states and thus ultimately affecting the Unity. For example, recently Andhra Pradesh Chief Minister has demanded to grant Andhra Pradesh with special status.
  • J & K, though being a part of India, but Indian cannot buy property there and various other facilities for which they are prohibited to avail is ultimately creating a feeling of alienation among both residents of J & K and of the rest of India.
  • This article is also asserted to be the cause of Kashmir problem as the union government is not fully empowered to act and resolve such a problem as per its need.

Thus, along with J & K, other states having different special provisions has led remaining states to feel discriminated and marginalised, therefore they also demand for such provisions and unfulfilment of this demand is ultimately building a feeling of distrust among them, thus affecting the unity thread of this country. Thus, these special provisions concept has now become a parasite for unity of our nation.


[1] STUDENT, FACULTY OF LAW, BANARAS HINDU UNIVERSITY.

[2] Manuel Velasquez, Claire Andre, Thomas Shanks, S.J., and Michael J. Meyer.Justice and Fairness, Markkula centre for Applied ethics (June 28, 2018), https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/justice-and-fairness/.

[3] M.P. Jain, Indian constitutional law (8th edn. Gurgaon: LexisNexis, 2018).

[4] Constitution of India is quasi federal in nature, Mystery of Law and Justice (June 30, 2018), https://lawmystery.com/2014/02/26/constitution-india-quasi-federal-nature/.

[5] Supra Note 2.