As J&K Is Shorn Of Special Status, States With Similar Provisions Are Worried


Jaipur: A former Mizoram chief minister has termed the change in the special status of Jammu and Kashmir, through a presidential order,  a “red alert” to states such as Mizoram and Nagaland that also enjoy special provisions under the Indian Constitution to enact laws on certain issues and impose restrictions on sale of land.

Eleven Indian states other than Jammu and Kashmir—Maharashtra, Gujarat, Nagaland, Assam, Mizoram, Sikkim, Manipur, Andhra Pradesh, Arunachal Pradesh, Goa, Karnataka—have provisions that set them apart from other Indian states on issues of land sale, protection of tribal areas and customs, forest management, inheritance of property and more, according to an analysis by IndiaSpend.

On August 5, 2019, Home Minister Amit Shah announced that through a presidential order the government would amend Article 370, which gave Jammu and Kashmir the right to have its own constitution and its own flag, to decide who is a Kashmiri citizen, and gave citizens rights to land and social benefits within the state, and restricted the Parliament’s power in the states. This change invalidated Article 35A—which restricted the sale of land to non-Kashmiris—and removed special provisions, mentioned above, for the state.

This change was effected without a Constitutional amendment, which would have required a two-thirds majority in both houses of parliament, and approval from the state’s governor.

“This sets a dangerous precedent. There is nothing that stops them from doing this in other states,” said former Supreme Court judge B.N. Srikrishna. “The question on the legality of this move is something the Supreme Court will decide on.”

Further a bill was introduced in Parliament to convert Ladakh into a union territory with no legislature of its own and Jammu and Kashmir into a union territory with a legislature.

Special provisions 

Although 11 states enjoy special provisions, there is no common thread between these special provisions in terms of religion or caste or geography, said Sudhir Krishnaswamy, professor of law and politics at Azim Premji University. Article 371 through 371 J contain these special provisions.

While many of these provisions are the outcome of negotiated political settlements, some dating to the time the respective territories joined India, others provide longer-term autonomy to certain groups, wrote Louise Tillin, a professor at the School of Global Affairs at King’s College London, in a chapter on asymmetric federalism in the Oxford Handbook on the Indian Constitution published in May 2016.

Most of these measures were enacted to protect economically under-developed areas, home to vulnerable populations not ready for "full democracy" or seen as vulnerable to exploitation. Further, Article 370 and 371--which enshrine the special provisions to other states--are within a part of the Constitution termed as 'temporary, transitional and special provisions',” Tillin wrote.

Other special provisions include the fifth schedule of the constitution, which operates in a majority of the tribal districts outside of the North-East, and gives the state governor the power to declare that certain laws do not apply in scheduled (or designated) areas. It also gives the governor the right to make regulations on land sales by scheduled tribes--tribal populations officially recognised as disadvantaged.

Under the Sixth Schedule, autonomous district councils for the states of Assam, Meghalaya, Tripura and Mizoram were given the power to make laws on land use, forest management, inheritance of property, marriage and social customs.

Special provisions were made in Karnataka for the development of the Hyderabad-Karnataka region, including the reservation of a proportion of educational seats and state government posts for people who belong to that region.

The sudden change on the status of Kashmir has fueled fears for some that similar actions might be taken on Article 371 that provides special privileges to other states.

“Today when you remove Article 370, what message are you sending to other states who have special status? That you will remove Article 371 as well?” asked Manish Tewari of the Congress Party in the Lok Sabha on August 6, 2019.

Previous amendments

Over the years, the Indian government has re-interpreted and changed several of these special provisions, many of which have been challenged at the Supreme Court.

The Supreme Court has played a “mixed and somewhat inconsistent role” with regard to these provisions, said Tillin in her analysis, adding that it permitted the weakening of Article 370, regarding Jammu and Kashmir, over time.

For instance, in the 40 years after 1954, as many as 94 of 97 entries in the Union List--items which are under the jurisdiction of the central government--of the Constitution, and 260 of the 395 articles of the Constitution, which were earlier not applicable to J&K, were extended to the state through Presidential orders.

But with regard to the Fifth and Sixth Schedules, and elements of Article 371, some court interventions have strengthened these special provisions over time.

“Successive benches of the Supreme Court have upheld the fact that the Sixth Schedule and Article 371F (related to Sikkim) supersede the fundamental rights and, for instance, allow for positive discrimination on the grounds of religion,” Tillin wrote, adding that, on paper, they also strengthened the role of a administrative tribunal in Andhra Pradesh under Article 371D to police the operation of positive discrimination on the basis of residence in matters of public employment. In the Sikkim legislative assembly, 12 of 32 seats are reserved for Sikkimese persons of Bhutia-Lepcha origin and one seat for the ‘sangha’ (Buddhist monasteries).

The north-eastern states’ provisions are different, and do not provide an independent status to any state to identify their own citizens or have their own constitution as Article 370, said Santosh Hegde, former solicitor general and judge of the Supreme Court. The political situation in Nagaland and other similar states is different from Kashmir, and Article 371 is for the development of economically backward situations, he explained. "In principle, I am against discrimination between states. If Nagaland man can buy land in Karnataka why can't a Karnataka man buy property in Nagaland? A transitory provision for a limited period is okay but not permanent provisions," he said.

All efforts would be made to ensure that Article 371 (A), which provides special provisions to the state of Nagaland, would not be distubed, said Y Patton, deputy chief minister of Nagaland, as quoted in a Nagaland Post article published on August 5 2019. He urged the state’s citizens to not panic.

The central government’s move on J&K is likely to be challenged in court on the grounds that the Constitution cannot be amended without a Constitutional Amendment, which requires assent from the Lok Sabha and Rajya Sabha.

(Khaitan is a writer and editor with IndiaSpend.)

We welcome feedback. Please write to respond@indiaspend.org. We reserve the right to edit responses for language and grammar.

Jaipur: A former Mizoram chief minister has termed the change in the special status of Jammu and Kashmir, through a presidential order,  a “red alert” to states such as Mizoram and Nagaland that also enjoy special provisions under the Indian Constitution to enact laws on certain issues and impose restrictions on sale of land.

Eleven Indian states other than Jammu and Kashmir—Maharashtra, Gujarat, Nagaland, Assam, Mizoram, Sikkim, Manipur, Andhra Pradesh, Arunachal Pradesh, Goa, Karnataka—have provisions that set them apart from other Indian states on issues of land sale, protection of tribal areas and customs, forest management, inheritance of property and more, according to an analysis by IndiaSpend.

On August 5, 2019, Home Minister Amit Shah announced that through a presidential order the government would amend Article 370, which gave Jammu and Kashmir the right to have its own constitution and its own flag, to decide who is a Kashmiri citizen, and gave citizens rights to land and social benefits within the state, and restricted the Parliament’s power in the states. This change invalidated Article 35A—which restricted the sale of land to non-Kashmiris—and removed special provisions, mentioned above, for the state.

This change was effected without a Constitutional amendment, which would have required a two-thirds majority in both houses of parliament, and approval from the state’s governor.

“This sets a dangerous precedent. There is nothing that stops them from doing this in other states,” said former Supreme Court judge B.N. Srikrishna. “The question on the legality of this move is something the Supreme Court will decide on.”

Further a bill was introduced in Parliament to convert Ladakh into a union territory with no legislature of its own and Jammu and Kashmir into a union territory with a legislature.

Special provisions 

Although 11 states enjoy special provisions, there is no common thread between these special provisions in terms of religion or caste or geography, said Sudhir Krishnaswamy, professor of law and politics at Azim Premji University. Article 371 through 371 J contain these special provisions.

While many of these provisions are the outcome of negotiated political settlements, some dating to the time the respective territories joined India, others provide longer-term autonomy to certain groups, wrote Louise Tillin, a professor at the School of Global Affairs at King’s College London, in a chapter on asymmetric federalism in the Oxford Handbook on the Indian Constitution published in May 2016.

Most of these measures were enacted to protect economically under-developed areas, home to vulnerable populations not ready for "full democracy" or seen as vulnerable to exploitation. Further, Article 370 and 371--which enshrine the special provisions to other states--are within a part of the Constitution termed as 'temporary, transitional and special provisions',” Tillin wrote.

Other special provisions include the fifth schedule of the constitution, which operates in a majority of the tribal districts outside of the North-East, and gives the state governor the power to declare that certain laws do not apply in scheduled (or designated) areas. It also gives the governor the right to make regulations on land sales by scheduled tribes--tribal populations officially recognised as disadvantaged.

Under the Sixth Schedule, autonomous district councils for the states of Assam, Meghalaya, Tripura and Mizoram were given the power to make laws on land use, forest management, inheritance of property, marriage and social customs.

Special provisions were made in Karnataka for the development of the Hyderabad-Karnataka region, including the reservation of a proportion of educational seats and state government posts for people who belong to that region.

The sudden change on the status of Kashmir has fueled fears for some that similar actions might be taken on Article 371 that provides special privileges to other states.

“Today when you remove Article 370, what message are you sending to other states who have special status? That you will remove Article 371 as well?” asked Manish Tewari of the Congress Party in the Lok Sabha on August 6, 2019.

Previous amendments

Over the years, the Indian government has re-interpreted and changed several of these special provisions, many of which have been challenged at the Supreme Court.

The Supreme Court has played a “mixed and somewhat inconsistent role” with regard to these provisions, said Tillin in her analysis, adding that it permitted the weakening of Article 370, regarding Jammu and Kashmir, over time.

For instance, in the 40 years after 1954, as many as 94 of 97 entries in the Union List--items which are under the jurisdiction of the central government--of the Constitution, and 260 of the 395 articles of the Constitution, which were earlier not applicable to J&K, were extended to the state through Presidential orders.

But with regard to the Fifth and Sixth Schedules, and elements of Article 371, some court interventions have strengthened these special provisions over time.

“Successive benches of the Supreme Court have upheld the fact that the Sixth Schedule and Article 371F (related to Sikkim) supersede the fundamental rights and, for instance, allow for positive discrimination on the grounds of religion,” Tillin wrote, adding that, on paper, they also strengthened the role of a administrative tribunal in Andhra Pradesh under Article 371D to police the operation of positive discrimination on the basis of residence in matters of public employment. In the Sikkim legislative assembly, 12 of 32 seats are reserved for Sikkimese persons of Bhutia-Lepcha origin and one seat for the ‘sangha’ (Buddhist monasteries).

The north-eastern states’ provisions are different, and do not provide an independent status to any state to identify their own citizens or have their own constitution as Article 370, said Santosh Hegde, former solicitor general and judge of the Supreme Court. The political situation in Nagaland and other similar states is different from Kashmir, and Article 371 is for the development of economically backward situations, he explained. "In principle, I am against discrimination between states. If Nagaland man can buy land in Karnataka why can't a Karnataka man buy property in Nagaland? A transitory provision for a limited period is okay but not permanent provisions," he said.

All efforts would be made to ensure that Article 371 (A), which provides special provisions to the state of Nagaland, would not be distubed, said Y Patton, deputy chief minister of Nagaland, as quoted in a Nagaland Post article published on August 5 2019. He urged the state’s citizens to not panic.

The central government’s move on J&K is likely to be challenged in court on the grounds that the Constitution cannot be amended without a Constitutional Amendment, which requires assent from the Lok Sabha and Rajya Sabha.

(Khaitan is a writer and editor with IndiaSpend.)

We welcome feedback. Please write to respond@indiaspend.org. We reserve the right to edit responses for language and grammar.

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