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GS Mains Foundation 2018

Special Provisions in the Constitution

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Special Provisions in the Constitution

Special Provisions in the Constitution

SPECIAL STATUS OF J & K (Article 370)


• Jammu & Kashmir has truly federal relation with the union.

• J & K got independence on 15th Aug, 1947 along with India, but daunted with the problems of forced annexation with Pakistan, it signed the Instrument of Accession with India & became a part of it.

• Instrument of Accession – Signed between Nehru & Maharaja Hari singh on 26th Oct, 1947.

• Under this, India acquired jurisdiction over the state with respect to subject of Defence, External affairs & communication.

• People of J & K elected a sovereign constituent assembly which met for the 1st time on Oct 31, 1951.

History of Article 370:
– The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru.
– Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution.
– He wanted ‘iron clad autonomy’ for the state, which Centre didn’t comply with.

What is Article 370?
– Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir.
– Under Part XXI of the Constitution of India, which deals with ‘Temporary, Transitional and Special provisions’, the state of Jammu & Kashmir has been accorded special status under Article 370.
– All the provisions of the Constitution which are applicable to other states are not applicable to J&K.
– For example, till 1965, J&K had a ‘Sadr-e-Riyasat‘ for governor and prime minister in place of chief minister.

Article 1 stated as, J & K is a constituent state of Indian union, however Article 370 grants a special status to J & K on the basis of agreement concluded at time of J & K accession to Indian union:

• J & K has its own constitution apart from Indian constitution (Framed on 17th Nov 1956 & came in force on 26 Jan 1957).

• Parliament cannot make laws with regards to J & K on subjects stated in state list.

• Residuary powers lies with legislature of J & K.

• Follows dual citizenship, only citizens of J & K can take part in elections to state assembly.

• Only citizens of J & K can acquire, own & dispose of immovable property in J & K.

• Only national emergency proclaimed on the grounds of war & external aggression shall have automatic extension to J & K.

• National emergency proclaimed on the grounds of internal armed rebellion shall not be automatically extended to J & K.

• Parliament cannot change name, boundary or territory of J & K without the concurrence of state legislature.

• No preventive detention law made by government can have automatic extension to J & K (PMLA is also applicable for J & K).

• Union has no power to proclaim a financial emergency to J & K.

• State government shall be consulted by centre before appointing a person as governor of J&K.

• Apart from Presidential rule, governor rule can also be imposed for a maximum of 6 months.

• DPSP & Fundamental duties enlisted in Indian constitution are not applicable to J & K

• Urdu – Official language of the state.

Provisions of Article 370:
• As per this Article except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws.
• Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
• As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
• Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state.
• It can declare emergency in the state only in case of war or external aggression.
• The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

J & K High Court –
– Can issue writs only in case of violation of FRs.
– Cannot declare a law unconstitutional – Lack of Judicial activism.

SPECIAL PROVISIONS FOR STATES (ARTICLE 371)

Article 371 – Special Provisions for Maharashtra & Gujarat:

President is authorised to provide that Governor of Maharashtra & Gujarat would have special responsibilities for:

• Establishment of separate development boards for Vidarbha, Marathwada & rest of Maharashtra moreover to Kutchh & rest of Gujarat.
• A report on working of these boards will be placed each year before state legislative assembly.
• Equitable allocation of funds for developmental expenditure over the mentioned areas.
• Equitable arrangements providing adequate facilities for technical education, vocational training & adequate opportunities for employment in state services.

Article 371 – A – Special Provisions for Nagaland:

• Act of parliament relating to following matters would not apply to Nagaland unless state assembly so decides:

– Religious & social practices of Nagas
– Nagas customary law & procedure
– Administration of civil or criminal justice involving decisions according to Naga customary law
– Ownership & transfer of land & its resources

• Special responsibility of governor with respect to law & order in the state (after consulting COMs, but his decision will be final) regarding internal disturbances occurring in Naga hills mainly in Tuesang area (Special responsibility ceases if President directs so).

• Governor has to ensure that money provided by the GOI out of consolidated fund of India for any specific purpose, is included in the demand for grant relating to that specific purpose only, not any other.

• A regional council for Tuensang district, consisting of 35 members should be formed & governor in his discretion shall make all the rules & terms regarding this council.

• For a period of 10 years, from formation of state of Nagaland or for further period as specified by Governor, on recommendations of regional council, following provisions would be operative for Tuensang district:

– Administration of Tuensang district shall be carried on by the governor.
– Governor in his discretion shall arrange for equitable distribution of money, between Tuensang district & Rest of Nagaland, provided by center.
– There shall be a minister for Tuensang affairs in state COMs.
– Final decision on all matters relating to Tuensang district shall be made by governor in his discretion.
– Members in Nagaland assembly from the Tuensang district are not elected directly by the people but by regional council.

Article 371 – B – Special Provisions for Assam:

• President may provide for the constitution & functions, a committee of Legislative assembly of the state, consisting of members of that assembly elected from the tribal area of Assam.
• President can also direct that the governor shall have special responsibility to secure proper functioning of that committee.

Article 371 – C – Special Provisions for Manipur:

• President may provide for the constitution & functions, a committee of Legislative assembly of the state, consisting of members of that assembly elected from the hill areas of Manipur.
• President can also direct that the governor shall have special responsibility to secure proper functioning of that committee
• Governor should submit an annual report to the President regarding the administration of Hilly areas.

Article 371- D – Special Provisions for Andhra Pradesh:

• President is empowered to provide equitable opportunities & facilities for people belonging to different parts of the state in matter of public employment & education.
• For above purpose, President may require the state government to organize civil posts in local cadre for different parts of the state & also provide for direct recruitment to posts in local cadre (or in any such educational institution).
• President may provide for establishment of an administrative tribunal in state to deal with certain disputes, relating to appointment, allotment or promotion to civil posts in state.
• Only SC is to exercise jurisdiction over such tribunal which means they are outside the purview of HC (President may abolish the tribunals if he thinks it is not necessary).

Article 371 – E -Special Provisions for Sikkim

• Legislative assembly shall not less than 30 members in addition with 1 seat from the state in Lok Sabha & 1 in parliamentary constituency.
• For the purpose of protecting the rights & interest of different sections of Sikkim population, Parliament is empowered to provide number of seats in Sikkim administrative assembly for the people belonging to such sections.
• Governor in his discretion (On direction of President) have special responsibility for peace & equitable arrangement for socio- economic development of different sections of Sikkim.

Article 371 G – Special Provisions for Mizoram:

• Legislative assembly shall not be less than 40 members

• Act of parliament relating to following matters would not apply to Mizoram unless state assembly so decides:

– Religious & social practices of Mizo
– Mizo customary law & procedure
– Administration of civil or criminal justice involving decisions according to Mizo customary law
– Ownership & transfer of land & its resources

Article 371 H – Special provisions for Arunachal Pradesh:

• Legislative assembly shall not be less than 30 members
• Governor of Arunachal Pradesh, on directions of President, shall have special responsibility for law & order in state (May consult with COMs but his decision will be final).

Article 371 – I – Special provisions for Goa

• Legislative assembly shall not be less than 30 members.

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