Special Provisions for J&K and the Northeast States: Boon or Bane?

Ishita Das[1]

Topics Covered in this article

Introduction

Article 370 is the most widely known special provision in the Constitution of India. It gives special status to the State of Jammu & Kashmir which is also recognized as a state under the First Schedule.[2] While this state is included within the ambit of states enshrined in Article 1 of the Constitution, it has a distinct status from the other states included in the First Schedule. There has been much debate about the abrogation of Article 370 from the Indian Constitution. Some believe that instead of uniting the people of the state with the rest of the Indian citizens this special provision has stirred ‘separatist emotions’.[3] Others argue that if this provision is tinkered with, the ‘nationalist forces’ within the state would weaken and the Centre would not be able to maintain a strong relationship with the state.[4]

Often such commentators have been political representatives who are perhaps unaware about the legal complexities surrounding Article 370. According to several legal experts, this issue involves careful analysis of the historical circumstances under which the state of Jammu &Kashmir acceded to the territory of India.[5] The Supreme Court has recently held in Kumari Vijayalakshmi Jha v. Union of India that Article 370 has achieved the status of a ‘permanent’ provision despite the headnote referring to it as ‘temporary’.[6] Apart from Article 370, certain other constitutional provisions lay down different administrative frameworks for several states. Does the inclusion of the special provisions lead to a more beneficial position for the country? Does it constitute an attack on the unity of India? This essay seeks to discuss the special provisions while highlighting the road forward as regards this problem.

Article 370 and special status of Jammu & Kashmir

The incorporation of Article 370 followed much debate between the drafters of the Constitution of India.[7] The motivations leading to the inclusion of this provision in the Constitution have been articulated by Sri. N. GopalaswamiIyengar in the Constituent Assembly. According to him, the state of Jammu and Kashmir deserved special treatment for the following reasons: (a) there was an instance of “war” within the territory of the state; (b) there were ceasefire agreements in place which were not being adhered to; (c) the conditions of the state were “unusual and abnormal”; (d) a portion of the state was still controlled by “rebels and enemies”; (e) the country was “entangled” with the United Nations on this issue; (f) the nation had committed to honour the wishes of the people of the state and provide them with an “opportunity” to decide whether they wanted to remain a part of the country; and (g) the “will” of the people would be determined through the instrument of the Constituent Assembly.[8]

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Article 370 provides that the application of the other Articles of the Constitution is to be determined by the President in consultation with the state government. Apart from this provision, there are other distinctions maintained with regard to this state under the Constitution.[9]Irrespective of the reasons leading to the inclusion of this provision in the Constitution, there are many legal aspects of Article 370 which merit attention. According to some eminent scholars, the current provision is a mere “shadow of its former self” with reduced autonomy for the people of the state.[10] While the permanent residents of Jammu & Kashmir continue to enjoy certain special privileges, the application of various Central government orders or Presidential orders has severely curtailed the ‘special’ characteristic often associated with the state.[11]Further, in cases such as State Bank of India v. Santosh Kumar Verma&Anr.,[12] the Supreme Court has stated that State of Jammu & Kashmir had no “vestige of sovereignty” outside the Indian Constitution, and the residents of the state could not be categorised as a “separate and distinct class” in themselves. They were primarily citizens of India and the State of Jammu and Kashmir was a part of India’s federal structures enshrined by the Constitution.[13]

However, the misconceived notion of being a ‘special state’ has arguably resulted in greater alienation of the people from the rest of the country. Violent extremist forces have converted this state to a bastion of militant or terrorist activities, often with the support of neighbouring countries. Development continues to elude the people of Jammu & Kashmir and frustration of the youth is on the rise.

Special provisions for northeast states

There are other lesser known special provisions in relation to states such as Nagaland[14], Assam[15], Manipur[16], Sikkim[17], Mizoram[18] and Arunachal Pradesh[19], wherein the customs, cultural practices, and economic and political interests of the inhabitants of the states are sought to be protected. The Sixth Schedule of the Constitution creates Autonomous District Councils for several North-East states such as Assam, Meghalaya, Mizoram, and Tripura.[20]These District Councils have been empowered to manage the affairs of the respective states such as welfare services relating to land, forest management, and public health. The ‘special’ character of these Councils stems from the fact that no law passed by the Central government that relates to their legislative powers or functions can be extended to the states concerned without their approval.[21]The special provisions with regard to the North-east states were incorporated following the recommendations of the Northeast Frontier (Assam) Tribal and Excluded Areas Subcommittee constituted under the guidance of Assam’s first Chief Minister, Gopinath Bordoloi.[22]The Subcommittee took into account the different cultural backgrounds of the people living in the tribal areas and felt that there was a need to protect them and safeguard their special interests.[23]

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Apart from the constitution of the Autonomous District Councils, the special provisions relating to the Northeast states require that the Governor should discharge ‘special responsibility’. He should act as per the directions of the President and even though he has to consult the Ministers, the final decision would rest with the Governor which are not open for question before any court of law.[24] Despite such special provisions which seek to establish autonomous administrative bodies in the North-east states and lay down that the Governors would exercise special responsibilities, the states are grappling with a plethora of political, economic and social crises.

Conclusion

The special provisions were incorporated in the Constitution with a view to safeguardingthe distinct socio-economic circumstances of the states of Jammu & Kashmir and the Northeast region. However, despite the special provisions, these states are struggling with various issues affecting their human rights on a daily basis. The opportunities are limited and often, people from these states travel to other parts of the country for better economic and social prospects. Persistent conflicts in these areas coupled with the imposition of draconian laws such as the Armed Forces (Special Powers) Act, 1958, have contributed to the spread of anger, resentment and a deep-seated frustration among the young members of the states.

Therefore, there are two central questions which have to be addressed in this context. Do these special provisions have the potential to help the residents of the states? The answer has to be in the positive. Further, do they constitute an attack on the unity of the country? This answer has to be in the negative. These provisions were designed to benefit the states and promote the unique cultural practices. However, the reasons leading to the failure of such safeguards are in contradistinction to their original purpose. The complacency on the part of the Central government and the lack of willpower regarding concerted action, among the state governments in Jammu & Kashmir and the Northeast states, are some of the factors behind the slow progress of these states. The constitutional provisions should be regarded as boons so that they can act as the stepping stones to a better political and economic environment for the states.

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[1] Student, Ll.M., W.B. National University Of Juridical Sciences, Kolkata [2017-18].

[2] Indian Const., First Schedule.

[3] Article 370 Created Separatist Psyche, Time to Say Goodbye to it: J-K BJP, The Hindustan Times (Aug. 11, 2017), https://www.hindustantimes.com/india-news/article-370-created-separatist-psyche-time-to-say-goodbye-to-it-j-k-bjp-spokesperson/story-fsff0BMXE1ygnSV0uhh6YN.html.

[4] Impossible to Abrogate’: Mehbooba, Farooq Welcome SC Observation On Article 370, Outlook India (Apr. 4, 2018), https://www.outlookindia.com/website/story/impossible-to-abrogate-mehbooba-farooq-welcome-sc-observation-on-article-370/310525.

[5] DP Satish,Abrogation of Article 370 a Very Complex Affair,say Legal Experts, News 18 (May 28, 2014), https://www.news18.com/news/india/abrogation-of-article-370-a-very-complex-affair-say-legal-experts-690866.html.

[6] Article 370 not a Temporary Provision, says Supreme Court, India Today (Apr. 4, 2018), https://www.indiatoday.in/india/story/article-370-not-a-temporary-provision-says-sc-1204024-2018-04-03.

[7] DD Basu, Commentary on the Constitution of India 11383 (Lexis Nexis, 2012) [hereinafter “Basu”].

[8] Id.

[9] Indian Const., art. 370.

[10] Amitabh Mattoo, Understanding Article 370, The Hindu (Nov. 18, 2016), https://www.thehindu.com/opinion/lead/Understanding-Article-370/article11640894.ece.

[11] Id.

[12] State Bank of India v. Santosh Gupta &Anr., (2017) 2 SCC 538.

[13] Id. 1 & 43.

[14] Indian Const., art. 371A.

[15] Id., art. 371B.

[16] Id., art. 371C.

[17] Id., art. 371E.

[18] Id., art.371G.

[19] Id., art. 371H.

[20] Id., Sixth Schedule.

[21] Id.

[22] Aniruddha Kumar Baro, Sixth Schedule and its Implementation: Understanding the Case of Bodoland (BTAD) in Assam 22 (12) IOSR JHSS 5,6 (2017).

[23] Id.

[24] Basu, supra note 7 at 11466.