Beyond Jammu and Kashmir: Why many States in India enjoy Special Provisions

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On 12^th December 2023, Supreme Court bench, with a majority of 5:0 judges, ruled that Article 370 of the Indian Constitution is only a feature of asymmetric federalism, which is not the same as having internal sovereignty.

Asymmetric federalism is based on unequal powers and relationships in political, administrative, and fiscal arrangement spheres between the federal units constituting a federation.
Asymmetry in the arrangements of a federation can be viewed in both vertical (between the centre and states) and horizontal (among the states) senses.
Asymmetric arrangements need not necessarily be the outcome of constitutional arrangements.
- They can also result from the way in which administrative, political, and fiscal systems are implemented in a federation.
India’s founding fathers recognized the need for a salad bowl approach to governance which recognizes the distinctive cultural differences in the country and permits self-rule within the scheme of a shared rule.

The main forms of administrative units in India are the Centre and the States.
But there are other forms, too, all set up to address specific local, historical and geographical contexts.
Besides the Centre and the States, the country has Union Territories with a legislature, and Union Territories without a legislature.
- For example, Puducherry and Delhi have legislatures, while the other territories under the Centre do not have legislatures or a ministerial council to advise the administrator.
- Even between Puducherry and Delhi, there is a notable difference.
- Puducherry has legislative powers on any matter mentioned in the State List or the Concurrent List, insofar as it applies to the Union Territory.
- Delhi, which has the same field, has three further exceptions: police, land and public order are outside its purview.
- However, Parliament has overriding powers over any law made by the Assembly in the Union Territories.
Just as the Centre and the States do not have matching powers in all matters, there are some differences in the way some States and other constituent units of the Indian Union relate to the Centre.
This creates a notable asymmetry in the way Indian federalism works.

The foremost example of asymmetry among Centre-State ties was in the way J&K related to India until August 6, 2019, the day the President declared that its special status ceased to be operative.
Under Article 370, the State was allowed to have its own Constitution, its own definition of ‘permanent residents’, the right to bar outsiders from holding property, and the privilege of not having any Indian law automatically applicable to its territory.
Indian laws had to be specifically permitted by its Assembly before it could operate there.
It was allowed to have its own Penal and Criminal Procedure Codes.
The President was empowered to notify, from time to time, the provisions of the Constitution that could be extended to the State, with or without modifications.

Special status is not unique to Kashmir. However, the sort of asymmetry seen in J&K’s relationship to the Centre is not seen in other States.
The ‘special provisions’ applicable to some other States are mainly in the form of empowering the Governors to discharge some special responsibilities.
The common feature is that wherever Governors have been asked to discharge special responsibilities, their discretionary power overrides the process of consultation with the respective Council of Ministers.
Article 371 says the Governor of Maharashtra has a special responsibility to establish separate development boards for Vidarbha, Marathwada, and the rest of the State.
- Under the same Article, the Governor of Gujarat has a similar responsibility towards Saurashtra, Kutch and the rest of Gujarat.
Likewise, Article 371A, 371B, 371C, 371D, 371F, 371G, 371H have special provisions w.r.t. Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, respectively.

The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram.
These create autonomous districts and autonomous regions.
Any autonomous district with different Scheduled Tribes will be divided into autonomous regions.
These will be administered by District Councils and Regional Councils.
These Councils can make laws with respect to allotment, occupation and use of land, management of forests other than reserve forests and water courses.
Besides they can regulate social customs, marriage and divorce and property issues.
In Assam, the Karbi-Anglong Autonomous Council, Dima Hasao Autonomous District Council and the Bodoland Territorial Council have been set up under the Sixth Schedule.
Another six autonomous councils have been formed by Acts of the legislature.
Ladakh has two autonomous hill development councils (Leh and Kargil). The Darjeeling Gorkha Hill Council is in West Bengal.

Source: Beyond Jammu and Kashmir: Why many states in India enjoy special provisions | Hindu

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