Explained: Special Provisions for North-Eastern States

The Indian Constitution portrays a vision of democracy. On one hand, the Constitution of India promotes equality and equal opportunity and on the other hand, it also promotes the upliftment of people who are not on equal footing than the rest in the country by way of reservations and special provisions for them. The Constitution grants special status to a few states in India through certain special provisions. At a glance, it may seem unequal and discriminatory towards other states who are not entitled to the special provisions, but a clear study of these special provisions shows the need for these provisions in those states. These special provisions are inserted in the Constitution for a cause and for the betterment of people in these states, to bring them to an equal footing with the rest.

The northeastern region of India is often referred to as “7 Sisters and 1 Brother” which resembles the 8 northeastern states- Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland, Tripura, and Sikkim. Behind the veil of magnificent natural scenery and beauty of these states, which makes them a constant tourist attraction, lies a constant struggle of the native and local citizens of these states, for recognition and acceptance. The Northeastern states are entitled to the special provisions, with few more other states of India.

SPECIAL PROVISIONS FOR THE NORTHEAST STATES IN INDIA

Part XXI of the Indian Constitution contains Articles relating to Temporary, Transitional, and Special Provisions. Under part XXI, Article 371A, B, C, F, G, H grants special status to the few northeastern state of India. Following are these provisions explained in details-

  • Article 371A- This Article grants special provisions to the state of Nagaland. Article 371A was inserted in the Constitution after Naga People’s Convention was signed by the Centre in 1960, which further lead to the creation of the State of Nagaland.

1(a)Under this Article the parliament is prohibited to enact any law unless, in respect of customary laws, procedures, social and religious practices unless decided by a resolution by the state Legislative Assembly of Nagaland. Also, the Parliament cannot enact any laws relating to the administration of Civil and Criminal Justice which involves the decision of the Naga Customary Laws and on matters relating to the transfer of land ownership and resources extracted from it.

(b)This subsection specifies that the Governor of Nagaland after consulting the Council of Ministers shall have the power to deal with internal disturbances and maintain law and Order in the Naga Hills- Tuensang Area.  In the case where a question arises as to whether a particular matter comes under the purview of the Governor to act in the exercise of his individual judgment under Article 371(1b), then irrespective of anything the Governor will have ultimate discretion and his decision will be held final. Also, the validity of such a decision will remain unquestionable.

In the case where the President receives a report and is satisfied that the Governor is no more required to hold the special responsibility toward maintaining law and order in the State of Nagaland, then the President can order for cessation of such special responsibility which was vested on the Governor of Nagaland.

(c) this subsection states that where the Governor is recommending regarding any demand for the grant and receives money from the Union Government’s Consolidated fund, then the Governor shall ensure to include it in the demand for a grant for such particular purpose as has been granted for and not in any other demand.

(d)This subsection states that the governor should by public notification notify regarding the establishment of a regional council with 35 members for the Tuensang District. Also, the Governor has the discretion to make provisional rules regarding –

  1. The composition and the manner of selection of the regional council;
  2. Stating the qualifications required to be fulfilled to be selected as a member of the regional council;
  3. Details regarding the term of office and allowances to be paid to the members of regional office;
  4. The procedure and conduct of business to be carried out in the regional council;
  5. Appointment of officers and staffs for the council and their conditions of services;
  6. Any other matter that the Governor deems fit to make rules for the Constitution and proper functioning of the council.

(2) Notwithstanding anything in the Constitution, the Governor shall notify through Public Notification, within a period of 10 years from the date of the formation of the state of Nagaland or on the recommendation of the regional council, specify the following-

  1. That the Governor of Nagaland will carry on the administration of the Tuensang district.
  2. That the fund he will be receiving from the Government of India, will upon his discretion be equally allocated between the Tuensang District and the rest of the state.
  3. That no law enacted by the Legislative Assembly shall apply on the Tuensang district unless he notifies through a public notification on the recommendation of the regional council. Provided such direction of Governor may have retrospective effect.
  4. That the Governor of Nagaland may make regulations if he deems fit for restoring and maintaining peace, progress, and good government in the Tuensang District, and any laws made by the parliament or any law of the district will get repealed or amended, which has retrospective effect.
  5. That the governor on the advice of the Chief Minister shall appoint one of the members who has been representing the Tuensang District in Legislative Assembly, as a Minister for Tuensang affairs. The minister appointed shall have direct access to the Governor for informing matters related to the Tuensang District. Besides, the Minister shall also keep the Chief Minister informed about the same.
  6. Notwithstanding any aforementioned Provision of this clause, the Governor is empowered to take the final decision on any matter relating to the Tuensang district.
  7. Where Articles 54, 55, and 80(4) refers to each or all the members of the State Legislative Assembly, it shall include the reference of each member or all the members of the Legislative Assembly of Nagaland.

(3) this subsection states that if the president deems fit, he may by order even make adaptation or modification in any Article which may arise any difficulty to any of the foregoing provisions of this Article. However, no such order shall be made after the expiry of three years from the date of formation of the State of Nagaland.

This Article further also explains that the Kohima, Mokokchung, and Tuensang districts will be considered to have the same meaning as mentioned in the State of Nagaland Act, 1962[1].

  • Article 371B- This Article states the special provisions for the State of Assam. According to this Article, notwithstanding anything mentioned in the Constitution, the President may, with respect to the State of Assam pass an order to provide for the Constitution and function of the Legislative Assembly of the State, which should contain elected tribal representative of the Assembly, from the trial areas as specified in schedule six and other members as specified. Also, the president shall make an order to modify the procedural rules of the Assembly for the proper functioning of that committee[2].
  • Article 371C- This Article states the special provisions for the State of Manipur. As per this Article, notwithstanding anything in the Constitution, the president may by order make provisions for the Constitution and functioning of the Legislative Assembly which shall contain members for the Assembly from the Hilly regions of Manipur.

It also explains that the term ‘Hilly region’ means those regions as declared in the Presidential order. According to this Article, either annually or depending upon the requirement of the president, the Governor shall make a report regarding the administration of the Hilly areas in the state of Manipur and submit it to the President. Also, the Executive power of the Union shall extend to giving directions for the administration of those hilly areas, to the State[3].

  • Article 371F- This Article states the special provisions for the State of Sikkim. (a)According to this Article, there shall be at least a minimum of 30 members in the State Legislative Assembly. (b)From the date of commencement of the Constitution (Thirty-sixth Amendment) Act, 1975-
  • As a result of the election held in Sikkim on April 1974 and the Assembly of Sikkim formed at that time, shall be deemed as the Legislative Assembly of the State of Sikkim.
  • The sitting members shall be considered a member of the State Legislative Assembly, elected under the Constitution.
  • The Legislative Assembly of the State shall perform all the functions and exercise the powers as mentioned for the State Legislative Assemblies under this Constitution.

(c) This subsection states that the period mentioned 5 years in clause (1) of Article 172, should be construed as a reference to a period of 4 years. And in case of considering the Assembly as Legislative Assembly for the State of Sikkim, the period of such 4 years shall be deemed to have commenced from the appointed day.

(d) As per this subsection of the Article, till other provisions are made, the parliament via law, one seat will be allotted to the state of Sikkim in the House of the people and also the state should form a parliamentary constituency, called as the Parliamentary Constituency for the state of Sikkim.

(e) This subsection states that the members of the Legislative Assembly of the State of Sikkim will elect the representative of the State of Sikkim for the House of the People, on the appointed day.

(f)According to this subsection, to protect the interest and rights of the people in different sections of the population of Sikkim, the parliament may make provision stating the number of seats in the Legislative Assembly which may be filled by candidates belonging to these different sections. Also, the parliament may make provisions for candidates who may stand alone for election to the Legislative Assembly of the State of Sikkim, for delimitation of the Assembly constituencies.

(g) The Governor of Sikkim shall have a special responsibility to maintain peace and order, among the different sections of the Sikkim’s population. Also, the Governor of Sikkim has to Discharge these special responsibilities, subject to directions given by the President, from time to time as the President may deem fit.

(h) All the properties and assets inside and outside the territory of Sikkim, which before the Appointed day was vested in the government of Sikkim, or to any person or authority for the benefit of the Government of Sikkim, shall after the appointed day be vested in the Government of the State of Sikkim.

(i) The High court Functioning within the territory of Sikkim, shall after the appointed day, be deemed as the High Court for the State of Sikkim.

(j) all officers and authorities whether judicial, executive, and Ministerial, as well as civil, criminal, and courts of revenue jurisdiction will continue to exercise their respective functions after the appointed day, as stated in the Constitution.

(k) all laws that were existing before the appointed day shall continue to operate even after the appointed day;

(l)to facilitate the application of laws as mentioned in (k), to bring the laws into accord with the provisions of the Constitution, the President may pass an order to adapt or modify any law from 2 years from the appointed day, and the law shall show the necessary adaptations or amendments. Also, such modifications or adaptations are unquestionable by any court of law.

(m) neither the Supreme Court nor any other court shall have jurisdiction regarding any dispute which has occurred out of any treaty or agreement or any instrument which has been executed by the Government of India, relating to Sikkim and has been executed before the appointed day. This clause also clarifies that nothing mentioned in this clause shall be construed to derogate the provision of Article 143.

(n)If the President may deem fit, he may extend any restriction or modification, made in any enactment which is in force in the state in India, by way of public notification.

(O)also, in case of any difficulty affecting the aforementioned provisions, the president can take necessary steps to mitigate such difficulty. However, such an order by the president shouldn’t be made after the expiry of 2 years from the appointed date.

(p) any action taken or things done within the territory of the State of Sikkim shall be considered valid as long as such is done in conformity with the Constitution and is done with the Presidential assent[4].

  • Article 371 G –-This Article states the special provisions for the State of Mizoram. As per this Article, any enactments by the Parliament in respect to social and religious practices of the Mizos and regarding their customary laws and procedures unless decided by the Legislative Assembly of Mizoram through a resolution. The Article also specifies that unless the Legislative Assembly of Mizoram decides by a resolution no enactment made by the parliament in regards to the ownership and transfer of land and administration of civil and criminal justice relating to their customary practices, shall not apply to the State of Mizoram. The Article also specifies that the Legislative Assembly of Mizoram shall consist of a minimum of 40 members[5].
  • Article 371 H- This Article states the special provisions for the State of Arunachal Pradesh. It specifies that the Governor of Arunachal Pradesh after consulting the Council of Ministers shall have the power to deal with internal disturbances and maintain law and order in the State of Arunachal Pradesh.  In the case where a question arises as to whether a particular matter comes under the purview of the Governor to act in the exercise of his individual judgment, then irrespective of anything the Governor will have ultimate discretion, and his decision will be held final. Also, the validity of such a decision will remain unquestionable.

In the case where the President receives a report and is satisfied that the Governor is no more required to hold the special responsibility toward maintaining law and order in the State of Arunachal Pradesh, then the President can order for cessation of such special responsibility which was vested on the Governor. The Article also specifies that the Legislative Assembly of the state of Arunachal Pradesh should consist of a minimum of 30 members[6].

WHY NORTHEAST STATES GET SPECIAL STATUS?

Article 371 was inserted in the Constitution to grant special status to certain states through some special provision to meet the unique need of some backward regions of these states. These special provisions were inserted in the Constitution to bring peace and harmony and to deal with the disturbed law and order in some parts of these states. The main reason behind granting special status to these states was to protect and preserve the cultures, traditions, languages, and ethnic diversity of the tribes of these states.

The north-eastern states of India consist are home to more than 200 fascinating tribes, and each tribal group has its own unique culture and tradition and other ethnic diversities. For ages, the north-eastern region of India had been struggling equal opportunities that the rest of the states enjoyed, hence another important reason to grant special status to the northeast states was to bring them to an equal footing with the rest of the states in India, to provide them with similar opportunities in terms of educational and employment facilities. These special provisions have served in these states to preserve their cultural and economic interests, and also, have protected the religious and social practices of these states.

WHY WAS THE NORTHEAST IN A STATE OF FEAR AFTER ABROGATION OF ARTICLE 370?

With regards to the special status conferred by the Constitution to these states, a state of alarm was induced in states of the North East after the government abrogated Article 370 revoking the special status of Jammu and Kashmir[7]. People apprehended that they also might have to face a similar situation as of Jammu & Kashmir, but later it was categorically clarified by the govt., that the people do not have to worry about it. According to the Home Minister of our country, there can be no comparison between Art 370 and 371[8].

Article 370 granted special status to the state of Jammu and Kashmir whereas, Article 371 grants special status to some of the states of India, which includes the 8 northeast states. Article 370 was a temporary provision whereas, Article 371 is a special provision that is permanent. Article 370 was specifically applicable to Jammu and Kashmir, but Article 371 covers 11 states of India.

Article 371 is important for northeastern states as these provisions have maintained law and order in these states and have also helped in their progress concerning education, employment, illiteracy, and poverty. Annulment of these special provisions would simply be undemocratic and violative of the Fundamental Rights of the people of the North-Eastern region of India.

CONCLUSION

Article 371 plays a vital role in maintaining the sanctity of the North-Eastern states. The privileges conferred by these Articles protect these vulnerable groups from discrimination. It allows for creating restrictive laws which curb the involvement of outsiders in buying tribal land, restrict entry and trade, and protect the people’s customs and their identity. Also, every new Act of the Parliament must be accepted through a resolution passed by the State Legislature, so that their lands, customs, and religion remain protected. Hence these laws are necessary for safeguarding these populations from being polluted by the concomitants of mainland India.


[1] The Constitution of India, art. 371A

[2] The Constitution of India, art. 371B

[3] The Constitution of India, art. 371C

[4] The Constitution of India, art. 371F

[5] The Constitution of India, art. 371G

[6] The Constitution of India, art. 371H

[7] Express Web Desk, “Article 370 different, centre will not touch Article 371, says Amit Shahin Guwahati”, The Indian Express, Sept.8, 2019, https://Indianexpress.com/Article/north-east-India/assam/Article-370-different-centre-will-not-touch-Article-371-says-amit-shah-in-guwahati-5977157/

[8] Ibid.


Author: Priyanka Purohit from SOA National Institute of Law, Bhubaneswar.


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