By: Avani Agarwal
Article 370 of the Indian Constitution grants special status to the state of Jammu and Kashmir, restricting the purview of parliamentary powers and allowing the state’s government to have greater autonomy. In accordance with the authority provided by this Article, former President Rajendra Prasad introduced Article 35A into the Constitution, following an agreement negotiated with the then Prime Minister of the state, Sheikh Abdullah. This article allows the government of Jammu and Kashmir to determine who classifies as a ‘permanent resident’ along with the power to treat them differently.
Both of these articles have proven to be heavily contentious and have recently been challenged in the Hon’ble Supreme Court for being unconstitutional. While their constitutionality has been contested on several grounds, a popular argument seems to be that these provisions detract from the “very spirit of oneness in India” by granting more power to a state and creating a new category within the class of Indian citizens.
Such constitutional asymmetry has been recognised to be a common as well as an essential feature of federal states that are either pluri-ethnic or pluri-national. However, one does not need to look outside India’s constitutional jurisprudence to find support for these Articles. Given the history of how the Union of India was formed, and the various religious and cultural minorities residing within, it seems inevitable to some commentators that the Constitution would accommodate differences through asymmetrical federalism. The fifth and sixth schedules, as well as the various sub-parts of Article 371 all, provide some form of special status to different states. This post seeks to analyse cases on these provisions in order to uphold the constitutional validity of greater autonomy in a federal structure.
Jammu and Kashmir’s status in the Constitution reflects two distinct forms of asymmetry – first, that the state has greater powers of self-governance, and second, that it has the ability to positively discriminate in order to rectify existing inequalities. The following sections will consider the constitutional validity of each of these powers.
INCREASED CAPACITY OF SELF-GOVERNANCE
Article 370 exempts the state from constitutional provisions that apply to other states and restricts the Parliament’s law-making authority to matters that the President, in consultation with the state government, deems to be corresponding to those specified in the original instrument of accession. Consequently, it has been argued that it leads to legal pluralism.
LIMITS ON THE APPLICABILITY OF THE CONSTITUTION
Article 2 of the Constitution provides the Parliament with the ability to admit or establish new states “on such terms and conditions as it thinks fit”. Since Article 370 is closely associated with the accession of Kashmir, it may be seen as one such term or condition. In R.C. Poudyal v Union of India, the Hon’ble Supreme Court held that Article 2 provides the government with considerable freedom in defining such terms and conditions, so long as they do not derogate from the basic features of the Constitution (para 172). It could be argued that since Article 370 limits the application of constitutional provisions to the state, it must violate the basic features of the Constitution. However, basic features refer not to specific articles but to broad themes, such as secularism, republicanism and democracy, that run throughout the Constitution. Consequently, Article 370 can restrict the application of certain Articles of the Constitution while retaining its fundamental features.
Further, the Article’s default position is that provisions of the Constitution, with the exception of Article 238 (which was never included in the Constitution in effect), will apply to the state unless the President specifies otherwise. Thus, the article only serves as a mechanism of exclusion and not as an active exclusion of the Constitution. The mechanism in itself cannot be held to be violative of basic features. An analogy may be drawn here to Article 31B which provides for the mechanism to make laws impervious to judicial review. The Hon’ble Supreme Court has found that while the laws introduced in this way may be found to be unconstitutional, the article in itself is not. Similarly, exclusions made under Article 370 may be deemed to be violative without bringing the Article itself under scrutiny. Indeed, 260 out of 395 Articles, including all the fundamental rights, are currently applicable to the state.
Additionally, an argument that may be used in favour of Article 31 B is that it has a veil of presumed constitutionality as it was drafted by the original constituent assembly. The same fictitious legitimacy may be extended to Article 370, which has been a part of the Constitution since it was first adopted.
LIMITS ON THE POWER OF THE PARLIAMENT TO MAKE LAWS
The Fifth Schedule of the Constitution deals with the governance of regions deemed to be Scheduled Areas by the President. Part B of the Schedule gives governors the power to determine whether laws made by the Parliament will be applicable to the area, and if any modifications are required before a law can be applied. Similarly, the Sixth Schedule provides that laws made by the parliament regarding various specified matters will not apply to autonomous districts and regions in Mizoram, Tripura, Meghalaya and Assam.
In Ewanlangki-E-Rymbai v Jaintia Hills District Council, the Hon’ble Supreme Court recognised that tribal areas established under the Sixth Schedule are governed “not by the relevant provisions of the Constitution which apply to other constituent States of the Union of India but by the provisions contained in the Sixth Schedule”. While the Court did refer to the Schedule as a self-contained code, it had already recognised that it was not distinct from the Indian Constitution. The year before, in Pu Myllai Hlychho v State of Mizoram, the appellants had contended that the Sixth Schedule served as a “constitution within the constitution” due to the legislative history of the schedule and the thought that had gone into its enactment. This argument was rejected by the Hon’ble Supreme Court which held that the complete segregation of the Sixth Schedule from the remainder of the Constitution cannot be visualised and that legislative history was an insufficient source for drawing such a conclusion (para 21). This means that despite the differential legislative powers, the argument of legal pluralism was not accepted. Instead, the Sixth Schedule was found to be a part of the Constitution. Hence, it has been held that the Indian Constitution allows states and other political territories to have greater autonomy of lawmaking and this autonomy appears to have, at best, judicial support, and at worst, the status of being an accepted feature of the document.
THE POSSIBILITY OF POSITIVE DISCRIMINATION
Article 35A deals with the second aspect of special status that is being questioned – the ability to discriminate in favour of certain categories of people. It allows the state government to define who are permanent residents and to treat them more favourably with respect to public employment, acquisition of immovable property, settlement in the state and the provision of scholarships and other forms of aid.
Such positive discrimination is not a rare feature in Indian constitutional jurisprudence. The government of Sikkim has been permitted to retain the category of “Sikkimese subject” in order to discriminate in favour of historical residents of the state. Article 371D has been used to enact provisions that allow the State of Andhra Pradesh to discriminate in favour of residents of specific regions for access to public employment as well as education. In Samatha v State of Andhra Pradesh, the Supreme Court found that land in scheduled areas under the Fifth Schedule could not be allocated to non-tribal individuals for mining purposes. In Rajdeep Ghosh v State of Assam, the Assamese government was allowed to create its own residence-based conditions for eligibility for state quota seats in medical colleges. Thus, the Indian Constitution has always permitted states to create differential rules for certain categories of people in order to benefit them. It has also provided many states with relative autonomy in defining the recipients of these benefits will be. The common thread appears to be that differential treatment is justified in cases where it has a legitimate reason, such as rectifying inequalities or benefitting the state. In this way, Article 35A is no exception. It was introduced as a manifestation of conditions considered essential by the state for it to join the Indian Union. It helped extend Indian citizenship to Kashmiri residents while allowing them to retain their differences. Consequently, the power of positive discrimination by itself is not unconstitutional.
The Indian Constitution contains a multitude of provisions that provide states with increased freedom, be it in restricting central legislation or in providing benefits to certain people as compared to others. While there is only a limited body of jurisprudence on the matter, it seems that the Hon’ble Supreme Court has never found any of these provisions to be unconstitutional, at least not because they are providing greater autonomy. Therefore, Articles 370 and 35A cannot be unconstitutional simply because they bestow special status upon Jammu and Kashmir.
 Louise Tillin, ‘Asymmetric Federalism’ in Sujit Choudhry et al (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016).
(Avani is currently a student at NALSAR University of Law. She has an avid interest in international law and the intersection between law and society.)