Constitutional Law Project

ACKNOWLEDGEMENT

I convey my deepest gratitude to my respected faculty of Constitutional Law Dr. K.K.Dwivedi, who has been a constant source of inspiration and guided me throughout the interval to complete this project on Special Status of States : Criteria successfully.

I wish to record my gratitude to the librarian and other staffs of CNLU library as no academic venture of mine can be complete without their assistance and co-operation. I owe sincere regards to them for providing me various valuable information through textbooks, journals and other necessary data.

Sukesh Ranjan ROLL NO. 475 6th SEMESTER

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RESEARCH METHODOLOGY

Aims and Objectives: The aim of the project is to present a detailed study of the topic Special Status of States through legislations, discussions, suggestions and different writings. The aim has been to come to a conclusion very much indigenous. Scope and Limitations: Though the topic Special Status of States is an immense project and pages can be written over the topic but because of certain restrictions and limitations we might not have dealt with the topic in great detail. Sources of Data: The following secondary sources of data have been used in the project1. Books 2. Website 3. Articles

Method of Writing and Mode of Citation: The method of writing followed in the course of this research paper is both doctrinal and nondoctrinal .The researcher has followed Uniform method of citation throughout the course of this research paper.

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Constitutional Law Project TABLE OF CONTENTS

1) INTRODUCTION.1 2) CONCEPT OF SPECIAL STATUS...3 3) ARTICLE 370 & SPECIAL STATUS TO JAMMU & KASHMIR7 4) BIHAR AND ITS DEMAND FOR SPECIAL STATUS..11 5) SPECIAL STATUS TO OTHER STATES...12 6) SPECIAL STATUS TO THE TRIBALS UNDER CONSTITUTION..22 7) CONCLUSION26 8) BIBLIOGRAPHY....27

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Objective

The objective of this project is: To study about the Special Status to States To find the criteria for Special Status To know about the States granted with the Special Status To study about the states demanding for Special Status

Hypothesis
The researcher has made certain assumption in the beginning of the research project which is going to be tested during the project, they are the following.

i. ii.

Whether special status should be given to the states or not. The criteria of the same should be different from the existing one.

Literature Review
The different books consulted provided with all the information regarding the provisions in the Constitution of India, but they did not discuss about the opinion of the people on the existing criteria for giving special status to the states.

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Constitutional Law Project INTRODUCTION

The history for the inception of special status states can be dated way back to 1969 when Fifth Finance Commission acting in line with the Gadgil formula1, announced special status to 3 states based on their terrain, backwardness and social issues prevailing. Soon this number reached 11. The rationale for special status is that certain states, because of inherent features, have a low resource base and cannot mobilize resources for development Jammu and Kashmir was also accorded the special status state under Article 370. J & K chose to be an independent state after India and Pakistan gained independence. But Maharaja Hari Singh wanted Jammu & Kashmir to be a part of India as a result of which Article 370 and Jammu & Kashmir continues to enjoy the special status with its own Constitution since Jan 1957.Special status states enjoy certain privileges and exemptions on account of the backwardness or other barriers like unfavorable terrain that prevents it from prospering otherwise. 'Special status' is one of the strategies adopted by federal systems to satisfy the demand of national groups for political and cultural autonomy. For allocation among special category states, there are no explicit criteria for distribution and funds are allocated on the basis of the states plan size and previous plan expendit ures. Allocation between non special category states is determined by the Gadgil Mukherjee formula which gives weight to population (60%), per capita income (25%), fiscal performance (7.5%) and special problems (7.5%). However, as a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of total transfers in 2011-12). Special category states also receive specific assistance addressing features like hill areas, tribal sub-plans and border areas. Beyond additional plan resources, special category states can enjoy concessions in excise and customs duties, income tax rates and corporate tax rates as determined by the government. The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS funds are prescribed by the centre. By the Gadgil formula, a special category state gets preference in federal assistance and tax breaks besides significant excise duty exemptions. This is to help improve the socio-economic
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conditions of the state by attracting large number of industrialists to establish their manufacturing units inside the state. The intention is to bring such backward states at par with other states of the nation and attain progress in parallel with other states. A significant 30% of the Centres gross budget goes to the Special category states. The demands for awarding special status have been made by earlier leaders also. A similar demand along with compensation was made at the time Bihar was bifurcated to create Jharkhand, but the centre did not give it a compensation or special category status. Since there are four other states demanding special status, the difficulty in Bihar getting it increases more. Unlike the 3 states that were accorded special status due to their terrain, Bihar is demanding it on account of backwardness on socioeconomic front. The state has the lowest per capita income of Rs. 9702 in the country as revealed in a report by DSES (Directorate of Economics and Statistics). Thus, Bihar lacks in development because of scarce resources and nonfunctional governments, giving a bad shape to growth of the state. The growing regional inequalities demand the endemic backwardness of the Bihar to be redressed. Huge employment opportunities can be created with the special category status being announced for Bihar and help curb the poverty and unemployment in the state. Its geographic location is disadvantageous and there is a dearth of nationalism and social structure in the state of Bihar which makes it a perfect candidate for being accorded the Special Status.

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Constitutional Law Project CONCEPT OF SPECIAL STATUS

There are twenty-eight states and seven union territories in India. Some of the states are given some benefits by the central government as they fall under the special category states. In 1969 while devising formula for sharing central assistance among states, the Fifth Finance Commission acting in line to the Gadgil formula, had accorded special status to three states on the basis of harsh terrain, backwardness and social problems prevailing in these states. As per Gadgil formula a special category state gets preferential treatment in federal assistance and tax breaks. The special-category states get significant excise duty concessions, and thus help these states attract large number of industrial units to establish manufacturing facilities within their territory. Now many other states have also been categorized under this term like:- Arunachal Pradesh, Assam, Himachal Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland etc.

Thus the main reason behind this categorization is the development of that particular state where there are many problems due to hilly terrains, international borders etc., as there cannot be good industrial development and the finances of the state are also less, thus the central government comes into picture. 90% of the central assistance is treated as grant and remaining 10% is considered as loan unlike other states which get 30% grant and 70% loan. The special category states have some distinct characteristics. They have international boundaries, hilly terrains and have distinctly different socio-economic developmental parameters. These states have also geographical disadvantages in their effort for infrastructural development. Public expenditure plays a significant role in the Gross State Domestic Product of the states. The states in the North-East are also late starters in development. In view of the above problems, central government sanctions 90 percent in the form of grants in plan assistance to the states in special category. The most important prescription for special category states is interest free loan with rationalization of public expenditure based on growth enhancing sectoral allocation of resources.

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For special category states unlike other states there is no hard budget constraint as the central transfer is high. Through the enactment of FRBM these states are also availing themselves of the benefit of debt swapping and debt relief schemes which facilitate reduction of the average annual rate of interest. There is a necessity of developing all these states at par with other states. This can only be possible if all these states are guided by the norms of inter-state equity based on fiscal efficiency. There are 12 states which fall under this category till now. The latest dispute regarding this is the issue that whether Bihar should also be given the status of special category state. The chief minister of Bihar Mr. Nitish Kumar has time and again made this demand because Bihar is economically backward and also falls on Indo- Nepal border. People in Bihar are adamant to get this status, but so far nothing has been done. Orissa, Chhattisgarh also have been demanding this status due to extreme poverty and also presence of Naxalites due to which no proper development can take place. The center has not at all responded to these demands and neither has the NDC (National Development Council)

The formation and division of states on the basis of these parameters is very good as it helps those states which have low financial capacity to overcome their social, economic and other problems in such a good manner and this ultimately benefits the people of that region.

GADGILS FORMULA The Gadgil formula is due to D.R.Gadgil, the social scientist and the first critic of Indian Planning. It was evolved in 1969 for determining the allocation of central assistance for state plans in India. Gadgil formula was adopted for distribution of plan assistance during Fourth and Fifth Five Year Plans. Up to 3rd Five Year Plan (FYP) [1961-66] and during Plan Holiday (1966-69), allocation of Central Plan Assistance was schematic and no formula was in use. The Gadgil Formula comprising (i) Population [60%] (ii) Per Capita Income (PCI) [10%] (iii) Tax Effort [10%] (iv) On-going Irrigation & Power Projects [10%] and

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(v) Special Problems [10%] was used during 4th FYP (1969-74) and 5th FYP (1974-78).

However, since item (iv) was perceived as being weighted in favour of rich states, the formula was modified by raising the weightage of PCI to 20%. The National Development Council (NDC) approved the modified Gadgil formula in August 1980. It formed the basis of allocation during 6th FYP (1980-85), 7th FYP (1985-90) and Annual Plan (AP) 1990-91. Following suggestions from State Governments, the modified Gadgil Formula was revised to Population (55%), PCI [25% {20% by deviation method and 5% by distance method}], Fiscal Management (5%) and Special Development Problems (15%). However, it was used only during AP 1991-92. Due to reservations of State Governments on revision, a Committee under Shri Pranab Mukherjee, then Deputy Chairman, Planning Commission was constituted to evolve a suitable formula. The suggestions made by the Committee were considered by NDC in December 1991, where following a consensus, the Gadgil-Mukherjee Formula was adopted. It was made the basis for allocation during 8th FYP (1992-97) and it has since been in use. After setting apart funds required for (a) Externally Aided Projects and (b) Special Area Programme, 30% of the balance of Central Assistance for State Plans is provided to the Special Category States. The remaining amount is distributed among the non-Special Category States, as per Gadgil-Mukherjee Formula. The main weaknesses in the application of the Gadgil-Mukhjerjee Formula in its various mutations are summarised below: There is no explicit basis for a 30 percent earmarking for the Special Category states. Shares determined on the basis of tax effort and fiscal discipline indexes are unscaled implying that if a large state like Maharashtra and a small state like Goa had the same tax effort ratio, they will get the same share regardless of their size. This would lead to a very large per capita share for Goa compared to that for Maharashtra, for example, for the same tax effort. The link between plan schemes/projects and plan assistance has been lost, leading to a severing of a link between costs and benefits, and lack of effective project based monitoring; and

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The 30:70 grant to loan ratio has long become irrelevant if the 30 percent grant ratio was meant to cover revenue expenditure on plans. There are no objective criteria for the distribution of 30 percent earmarked share among the special category states.

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Constitutional Law Project ARTICLE 370 & SPECIAL STATUS TO JAMMU & KASHMIR
The Instrument of Accession of Jammu and Kashmir to India was signed by the Maharaja Hari Singh in October, 1947 and a special status was given to the State through the Article 370. The wordings of Article 370 and its title "Temporary provisions with respect to the State of Jammu and Kashmir" are both significant as they imply that it was designed as a temporary or provisional arrangement. Thus, among the main aims of granting a special status were, (a) to ensure the Kashmiris that their distinct identity would be preserved and (b) to placate the Muslims of the Valley who were felling uncertain over their future.

According to many legal experts Article 370 is the umbilical cord only that links J&K to India. The Article essentially governs central-state relations pertaining to J&K Centre-State relations and issues of regional balance within States are similarly dealt with in the case of Gujarat, and
issues of regional balance within States are similarly dealt with in the case of Gujarat,

Maharashtra, Andhra Pradesh, Assam, Sikkim, Manipur, Nagaland, Tripura, Meghalaya, Arunachal etc. In Article 371-A to I and schedules 5 and 6. Kashmir, in this sense, is not uniquely treated. Article 371-A relating to Nagaland provides that no Act of Parliament with regard to certain matters specified shall apply to Nagaland unless the Legislative Assembly of that state by resolution so decides.

Since the State of Travancore insisted that payments to its Devaswom Fund for the maintenance Of certain Hindu temples must be continued as a condition for extension of the Indian Constitution to its domain, this was accepted incorporated in Article 290-A. The Constitution is replete with such 'special provisions'. When objections were raised in the Constituent Assembly regarding the inclusion of Article an assurance was given by the farmers of the Constitution that it would get eroded gradually. T his happened to some extent during the premiership of Bakshi Ghulam Mohmmad, but it was not taken to its logical conclusion. So stating the Article as the root cause of all the trouble over J&K and in the fear of demand for a plebiscite, a promise made by Mr. Nehru in 1948 some political parties have been demanding abrogation of the Article. They also believe that this Article has encouraged the secessionist elements in other part of the

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country. The Bharatiya Janta Party made abrogation of this Article as one of its commitments in the election manifesto for the Lok Sabhapolls also.

Article 370 servers as a reminder to the Muslims of Jammu and Kashmir and the rest of the country that it is yet to merge with the country. This impression creates uncertainty and ambiguity. It is also argued that the situation has become grave despite that the factor that the Article is very much a part of the Constitution and as a result, the state continues to enjoy the special status accorded to it when it acceded to India. The fact is that Article 370 is the only legal window through which the Republic of India maintains its territorial link with J&K and extends it jurisdiction to the State. To scrap this special provision would mean reverting to the Instrument of Accession. Such reversion would merely offer an opportunity to the secessionists in Kashmir to demand a plebiscite and proved further ground to those seeking to internationalize the issue. After Kashmir's accession, this state was permitted to enjoy two special rights - a separate Constitution and retention of Kashmir State subject laws, in view the unusual historical circumstances leading to the accession.

THE NEED FOR ARTICLE 370

Some narrow-minded people not only question the necessity of article 370 in the Constitution of India, but they demand its removal. Antagonists of article 370 should know that there is also an article 371 in the Constitution of India which is similar in nature of article 370. Article 370 has been incorporated in our constitution to grant some special status and privileges to the state of Jammu & Kashmir (J&K). These include the sanction to frame a constitution for the state and restrict the power of Parliament to frame laws for J&K. It is a historical fact that when the Maharaja of J&K decided to accede the state in India, provision for a separate constitution for the state was also included in the agreement with Govt. of India.

Our nation is like a flowerpot of different religions, castes, races, languages, cultures, traditions

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and customs. The founding fathers of our constitution were wise people with a distant vision. They felt that a uniform law cannot be enforced in the length and breadth of the country. It is why the constitution was made flexible and sentiments of all were kept in mind. In Part III under the head of fundamental rights vide article 15, discrimination on grounds of religion, caste, race, sex or place of birth is prohibited, whereas under article 29, citizens of the country have been empowered with right to protect their languages, scripts and cultures.

In the light of the above-mentioned rights some relaxations have been granted to a number of states and regions. Many people may not be aware of the fact that when the land reforms act 1950 was enacted in united Bihar, zamindari was abolished whereas in some parts of Bihar, which is now Jharkhand, zamindari in tribal areas was left intact and this continues till date. In Jharkhand for Chotanagpur region Chotanagpur tenancy act and for Santhal Praganas region Santhal Praganas tenancy act is in vogue. In the name of Mundari Khuntkatti, Korkar, Bhuinhari and others zamindari still continues in that region. In 1969 Bihar Scheduled Areas Regulation Act was passed by which tribals of the region, which is now Jharkhand, were given rights to take back land free of cost which were transferred to non-tribals 30 years before the enactment of the said act. Though these laws are contrary to articles 13 & 31(A) of the constitution but these have been legalised constitutionally by incorporating them in article 31(B) & ninth schedule of the constitution. In the ninth schedule of the constitution, there are altogether 284 acts which have been included to validate special provisions for the citizens of almost all the states of the Indian Union. In addition to this, protagonists of uniform civil code should know that in Kolhan area of West Singhbhum district of Bihar, now Jharkhand, civil procedure code is not in vogue. In Kolhan area, civil cases are decided by a special law called Kolhan act.

Thus the state of J&K is not an exception for which special provisions have been made in the constitution. In fact, special provisions have been made vide article 371 of the constitution to protect the rights including culture and custom of various states of this country. Whereas article 370 is a temporary arrangement, article 371 has special status. Under article 371, people of different states have been accorded special concessions as is obvious from the following facts: Vide article 371, provisions have been made to establish development boards for Vidarbha, Marathwada and Saurashtra regions of Maharashtra and Kutch region of Gujarat, as well as for
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equitable and adequate facilities in technical education, vocational training and adequate opportunities of employment in govt. services in these regions.

Vide article 371(A) and371(G), special provisions have been made for the states of Nagaland and Mizoram by which no act of parliament in respect of their religion or social practices, customary law and practices, administration of civil and criminal justice involving decisions according to their customary laws, ownership and transfer of land shall apply to the states of Nagaland and Mizoram unless the legislative assembly of the respective state by a resolution decides so. Vide article 371(B & C), specific provisions have been made to constitute special committees and other privileges for the tribal areas of Assam and Manipur. According to article 371(D),there are special provisions in respect of the state of Andhra Pradesh for equitable opportunities and facilities for the people belonging to different parts of that state. Vide article 371(H), governor of Arunachal Pradesh has been empowered with special responsibility for law and order in that state. Besides these as per article 371(F & I), special provisions have been made for the states of Sikkim and Goa respectively.

From the perusal of above-mentioned facts it is crystal clear that the article 370 for J&K is not the only such provision inserted in the constitution. Rather, special provisions have been made vide article 371 for other states also, viz., Assam, Andhra, Tripura, Manipur, Goa, Sikkim, Nagaland, Gujarat and Maharashtra. Beside these, there are 284 laws pertaining to almost all the states and Union territories of the country which are contrary to Constitution of India but they have been legalised and protected by a special article 31(B) in the constitution. Over and above these, laws have also been framed for the tribal areas of Assam, Meghalaya, Tripura and Manipur vide articles 244 & 275.

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Constitutional Law Project BIHAR AND ITS DEMAND FOR SPECIAL STATUS

Eminent social scientists drawn from different parts of the country justified the demand for according special status to Bihar for ensuring its proper development. Though the state is replete with natural resources, special status would speed up its pace of development, they observed. Bihar had got enough development potential and the state has really developed a lot in recent years. But a lot remained to be achieved to make it fully developed. Bihar is growing at a faster pace; the state does not need special category status. "It is a fact that Bihar is growing. But it is just the beginning and the base is very narrow. The present growth rate will not sustain and the state cannot reach the national average. It has to go miles ahead and for this Bihar needs special category status. Special category status would be difficult to meet for any government as Bihar does not qualify under the parameters set for such states, experts said on Wednesday. Bowing to such demands would spark off similar demands from other states and make it difficult to balance them. Adding more states would mean that states would end up getting less from the central pool meant for such states and lead to "development distortions". But it cannot demand special category status "just because it is poor". Bihar does not qualify under the special category states category. It is meant for a specific category such as a hilly terrain and geographical ly difficult area where supply of public services is difficult. Bihar has been given more funds in the 13th Finance Commission awards than in previous years keeping in view the developmental needs of the states. India comprises apart from six UTs, 18 state s in general and 11 in special category. All the north-eastern States, J&K, Himachal and Uttarakhand are in the special category. The special category states have some distinct characteristics. They have international borders, hilly terrains and distinctly different socio-economic developmental parameters, according to a study undertaken for 13th Finance Commission. The study says these states have geographical hindrances in infrastructural development. Public spending plays a vital role in the gross State Domestic Product. The NE states are also late starters in development. Hence, the Centre sanctions 90% in grants in plan assistance to states in special category.

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Pronob Sen, principal adviser in the Planning Commission, said when three new states Jharkhand, Chhattisgarh and Uttarakhand were carved out only Uttarakhand was given special status because of its difficult terrain, development pattern and proximity to an international border. But on the contrary Bihar Chief Minister, Nitish Kumar states that Bihar fulfils three out of the five criteria laid down for according special category status to a state. Bihar's growth rate at 13 percent has been widely appreciated and acknowledged even by the Centre. For better growth, "we should be granted special category status. Special category status would bring private investment and investors would get tax benefits and the Centre too would have to make less investment in the state and the surplus would be spent on development work. Background of the demand It is not that the demand for accordance of special-category status has been made for the first time by a leader of Bihar. At the time of bifurcation of the state similar demand was made by the Bihar Government apart from demanding Rs.2,00,000 crore as compensation for the loss of natural resources and assets to the state. The Centre neither accorded special status to the state nor compensated for the loss of natural resources and assets. Now by rejuvenating the demand, though, Nitish Kumar has touched the right chord of the people of Bihar. Difficulties in getting the status Bihar is not the single state who is in the race for special category status. Four other states are also demanding the accord of similar status. In the wake of such demands, experts say, it would be politically very difficult to accord such status to Bihar leaving behind other states. Apart from this the political dispensation at New Delhi is also not favourable to Bihar. The political bargaining power of Bihar has reduced considerably thanks to the Lok Sabha election results. It is very much evident in the formation of Union Cabinet too where Bihar has got only one Cabinet rank Minister in Mrs. Meira Kumar who is identified more by her late father Babu Jagjivan Ram than by her own name. Silver lining on the horizon though, would be the stature and hardworking image of Nitish Kumar and his rapport with the Prime Minister. Another point
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which may comfort Nitish is absence of RJD ministers who instead of furthering the cause of Bihar blocked the decisions going in the favour of Bihar on several occasions. Though not so easy, it is also not so difficult to plead the case in favour of Bihar. As we are aware, the basis for according special-category status to the initial three states was socioeconomic backwardness and harsh terrain of the states. Though, Bihar does not have harsh terrain, it has the case of socio-economic backwardness. According to the report of State Directorate of Economics and Statistics (SDES) per capita income in Bihar during 2006-07 was meager Rs.9,702- the lowest in the country. Similarly according to the report of Reserve of India (RBI) per capita expenditure was also at the bottom of the list. The state spent only Rs. 1,352 per capita in 2006-07. Per capita GDP of the state in 200-01 stands to Rs. 3649.80 as against the all India average of Rs. 11625.20. The density of population in Bihar is 880 according to the 2001 Census Report. Cumulative per capita grants from the Centre to the state has been Rs. 488.30 during the period 2000-01 to 2002-03 which is the lowest in the country. Be it per capita development expenditure or per capita social sector expenditure, Bihar ranks last on the national map. Per capita development expenditure for 2007-08 of Bihar is only Rs. 2294 as against the All India figure of Rs. 4308. Per capita social sector expenditure of Bihar is only Rs.1465 as against the All India average of Rs.2492. (Source: State Finances- A Study of Budgets of 200708, RBI). Bihar inhabitates the largest population in the country living below poverty line. In nutshell it may be summarized that on all the economic and social indicators Bihar fares very low thanks to the scarcity of resources after bifurcation and also due to almost non-functional governments for the last 20-25 years badly affecting the growth scenario of the state.

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Constitutional Law Project SPECIAL STATUS TO OTHER STATES

Article 370 of the Indian Constitution through which this status is defined, gives special status to Jammu and Kashmir. Article 371 contains special provisions for Maharashtra and Gujarat.

Articles 371A for Nagaland: Under article 371A of the Indian Constitution, Nagaland is enjoying a special status. No Act of Parliament can disturb Nagaland in respect of a. Religious or social practices of the Nagas. b. Naga customary law and procedure. c. Administration of civil and criminal justice involving decisions according to Naga customary law. d. Ownership and transfer of land and its resources.

It is also reported that the Government of India is likely to agree to a constitutional amendment providing:1. Upper House (State Legislative Council) 2. Separate flag for Nagaland 3. Autonomous development Council 4. increased autonomy for Nagaland 5. Special Status for Nagaland 6. Development projects for Nagaland 7. Formal recognition of the unique history of the Nagas.

Article 371B for Assam: Notwithstanding anything in the Indian Constitution, the President may, by order made with respect to the State of Assam, provide for the constitution and functions of a committee of the Legislative Assembly of the State consisting of members of that Assembly elected from the tribal areas specified in Part I of the table appended to paragraph 20 of the Sixth Schedule and such
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number of other members of that Assembly as may be specified in the order and for the modifications to be made in the rules of procedure of that Assembly for the constitution and proper functioning of such committee.

Article 371C for Manipur: (1) Notwithstanding anything in the Indian Constitution, the President may, by order made with respect to the State of Manipur, provide for the constitution and functions of a committee of the Legislative Assembly of the State consisting of members of that Assembly elected from the Hill Areas of that State, for the modifications to be made in the rules of business of the Government and in the rules of procedure of the Legislative Assembly of the State and for any special responsibility of the Governor in order to secure the proper functioning of such committee. (2) The Governor shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Hill Areas in the State of Manipur and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas. Explanation: In this article, the expression "Hill Areas" means such areas as the President may, by order, declare to be Hill Areas.

Article 371D for Andhra Pradesh: (1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State as a whole, for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the State. (2) An order made under clause (1) may, in particular, (a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised;
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(b) specify any part or parts of the State which shall be regarded as the local area (i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government; (ii) for direct recruitment to posts in any cadre under any local authority within the State; and (iii) for the purposes of admission to any University within the state or to any other educational institution which is subject to the control of the State Government; (c) specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made (i) in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order, (ii) in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be. (3) The President may, by order, provide for the constitution of an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers and authority including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty-second Amendment) Act, 1973, was exercisable by any court (other than the Supreme Court) or by any tribunal or other authority as may be specified in the order with respect to the following matters, namely: (a) appointment, allotment or promotion to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order; (b) Seniority of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order; (c) such other conditions of service of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State or to such class or classes of civil posts under the

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State or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order. (4) An order made under clause (3) may (a) authorise the Administrative Tribunal to receive representations for the redress of grievances relating to any matter within its jurisdiction as the President may specify in the order and to make such orders thereon as the Administrative Tribunal deems fit; (b) contain such provisions with respect to the powers and authorities and procedure of the Administrative Tribunal (including provisions with respect to the powers of the Administrative Tribunal to punish for contempt of itself) as the President may deem necessary; (c) provide for the transfer to the Administrative Tribunal of such classes of proceedings, being proceedings relating to matters within its jurisdiction and pending before any court (other than the Supreme Court) or tribunal or other authority immediately before the commencement of such order, as may be specified in the order; (d) contain such supplemental, incidental and consequential provisions (including provisions as to fees and as to limitation, evidence or for the application of any law for the time being in force subject to any exceptions or modifications) as the President may deem necessary. (5) The order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier: Provided that the State Government may, by special order made in writing and for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified from or be of no effect, as the case may be. (6) Every special order made by the State Government under the proviso to clause (5) shall be laid, as soon as may be after it is made, before both Houses of the State Legislature. (7) The High Court for the State shall not have any powers of superintendence over the Administrative Tribunal and no court (other than the Supreme Court) or tribunal shall exercise any jurisdiction, power or authority in respect of any matter subject to the jurisdiction, power or authority of, or, in relation to the Administrative Tribunal. (8) If the President is satisfied that the continued existence of the Administrative Tribunal is not necessary, the President may by order abolish the Administrative Tribunal and make such
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provisions in such order as he may deem fit for the transfer and disposal of cases pending before the Tribunal immediately before such abolition. (9) Notwithstanding any judgment, decree or order of any court, tribunal or other authority, (a) no appointment, posting, promotion or transfer of any person (i) made before the 1st day of November, 1956, to any post under the Government of, or any local authority within, the State of Hyderabad as it existed before that date; or (ii) made before the commencement of the Constitution (Thirty-second Amendment) Act, 1973, to any post under the Government of, or any local or other authority within, the State of Andhra Pradesh; and (b) no action taken or thing done by or before any person referred to in sub-clause (a), shall be deemed to be illegal or void or ever to have become illegal or void merely on the ground that the appointment, posting, promotion or transfer of such person was not made in accordance with any law, then in force, providing for any requirement as to residence within the State of Hyderabad or, as the case may be, within any part of the State of Andhra Pradesh, in respect of such appointment, posting, promotion or transfer. (10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.

Article 371E {Establishment of Central University in Andhra Pradesh}: Parliament may by law provide for the establishment of a University in the State of Andhra Pradesh.

Article 371F for Sikkim: Sikkim has a special debt to the Constitution of India. Its special status within the Union of States that is India has been written into this document and because it is so, no one can deny this status. Attempts may be made to dilute this status, and some might even succeed, but fact remains that such dilutions will remain temporary. The moment someone holds up the mirror of the Constitution to such dilutions, the status as enshrined under Article 371F will be returned to Sikkim. That is something that no Tripartite Agreement or Old Law can guarantee and that is

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why Sikkim, even though it was not a part of India when the Constitution was drafted and installed, needs to be grateful to the great minds that gave us our Constitution. What is safeguarded by Article 371F will always be safe, the Constitution is strong enough to guarantee that, but the real aspirations which moved the people so strongly in 1975 as to become part of democratic India will be achieved only when the true potential of the Constitution trickles down to every corner of the State. For that, a more complete understanding of this document needs to be promoted. For that, Sikkim, its people and its leaders will need to expand their scope beyond Article 371F. Agreed, this is the Article which provides the special arrangement for Sikkim as a part of India, but what should not be overlooked is that this special arrangement is essentially incorporated for the Sikkimese to enjoy the guarantees of the rest of the Constitution. The Republic Day is past, but there is still time to make a resolution to acquire a more complete appreciation of the Constitution of India. Take Article 371F for example, it is almost always exclusively quoted with reference to clause (k) and its opening remark, all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein... This is the inclusion in the Constitution which protects Sikkims Old Laws. That sentence however continues to state: ...until amended or repealed by a competent legislature or other competent authority. The next clause (l) had empowered the President of India to bypass the competent legislature or other competent authority and make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient. There has not been enough discussion on cl ause (k) in its entirety and it is perhaps time that the people did so. Agreed these are not times in the country, or even the world for that matter, when one finds much faith in either competent legislatures or competent authorities, but if one were to look beyond the infectious scepticism of the times, one might emerge with an even deeper respect for the Constitution of India. The attendant clause which allows a competent Legislature or other competent authority to amend or repeal existing Old Laws need not necessarily be seen as an instrument to dilute Sikkims uniqueness, but instead as empowerments to allow Sikkim to adapt to changing times... on its own terms. The Constitution of India is nothing if not organic and flexible; it is that rare document which can keep step with the times and has never been regressive. If more informed discussions were undertaken to flesh out its virtues and what it makes possible for Sikkim, the State and its people
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can set even better terms for their involvement in nation-building while still ensuring Sikkims unique identity within India. This is after the document that makes every Indian free, equal and empowered; and in the case of Sikkim even more so.

Article 371G for Mizoram: Special provision with respect to the State of Mizoram Notwithstanding anything in this Constitution, (a) no Act of President in respect of (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo customary law, (iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides: Provided that nothing in this clause shall apply to any Central Act in force in the union territory of Mizoram immediately before the commencement of the Constitution (Fifty third Amendment) Act, 1986 ; (b) the Legislative Assembly of the State of Mizoram shall consist of not less than forty members

Article 371H for Arunachal Pradesh: Notwithstanding anything in this Constitution, (a) the governor of Arunachal Pradesh shall have special responsibility with respect to law and order in the state of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken: Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:

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Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Arunachal Pradesh, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order; (b) the Legislative Assembly of the State of Arunachal Pradesh shall consist of not less than thirty members.

Article 371(I) for Goa: Notwithstanding anything in this Constitution, the Legislative Assembly of the State of Goa shall consist of not less than thirty members.

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Constitutional Law Project SPECIAL STATUS TO THE TRIBALS UNDER CONSTITUTION

In India, a major division of human beings is based on races. The different races are recognized on the basis of shape, size, characteristics of various organs of the body and also depending upon the environment and cultural activities. Due to this kind of classification of races now-a-days the people in India follows ethnic identity of their race. The Fifth and Sixth Schedules of the Constitution grant special provisions to the Tribal Areas and the North eastern States. Tribal People constitute 8% of the total population of India with more than 50 groups. Most of them belong to the Negrito, Proto-Austroloids, Mongoloids ethnic groups propounded by Dr.B.S.Guha. Those groups migrated to India in the early periods. Later waves of migrants displaced these people who left the plains and valleys where they had settled and sought refuse in inaccessible forests and mountains. As by this movement they got insulated from the rest of the population and were not affected by subsequent changes in other areas, they have been able to preserve their ethnic purity and cultural individuality to a very great extent. These tribal communities are mainly food gatherers or hunters. Some of them practice the primitive method of shifting cultivation. In the Himalayan regions some of them are pastoral communities. Tribal Organizations: Classification of tribal social organizations can be made on the basis of the ways adopted by them to make a living since this has a great influence on the structure. Tribal Population can be grouped into *Most Isolated Tribes. *Small Nomadic or semi nomadic tribes. *Comparatively independent groups. Among the most isolated tribes, the Jarawas and Sentinalese of Andaman and Nicobar Islands are most important. Their occupations are hunting, fishing and food gathering. The examples of nomadic and semi nomadic tribes are found in Bihar, Orissa, Kerala and Andhra Pradesh. Such tribes are the Burhor, Mallar, Karias, Kadar and cenca. They are also food gatherers but exchange their products such as fruits, honey, Bees-Wax, roots and ropes from wild creepers with agricultural products grown in the plains. The tribes that cannot be classified by their
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occupational habits are not easily distinguishable from the rest of the population, though they have separate languages and social customs. The tribal people who follow other professions like those are mining or working in factories, etc. are not accorded the same status, as those who come from nontribal origin. Their inferior social ranking and ignorance leave them open to severe exploitation by employers and middlemen.

CONSTITUTION OF INDIA: Indian Constitution has accepted the ideas of equality and justice both in the Social and Political fields. Accordingly it abolishes any discrimination to any class of persons on the ground of religion, race or place of birth. It would have been a blunder on the part of the makers of the constitution if, on a logical application of the above principle they have omitted to make any special provisions for the advancement of those who are socially and economically backward, for the for the advancement of those who are socially and economically backward, for the democratic march of nation would be impossible if those who are handicapped are not aided at the start. The principle of democratic equality, indeed can work only if the nation as a whole is brought on the same level as far as that is practicable. Our Constitution, therefore, provides certain temporary measures to help the backward sections to come up to the same level with the rest of the nation, as well as certain permanent safeguards for the protection of the cultural, linguistic and similar rights of any section of the community who might be said to constitute minority from the numerical, not communal point of view in order to prevent the democratic machine from being used as an engine of oppression by the numerical majority.2 The Indian Constitution specifically provided certain Articles in the Constitution for the upliftment of tribals and also to protect them from the oppressions caused by the other people in the society. The protective rights granted by the Indian Constitution, 1950 to the tribal people can be classified under the following heads. 1. Educational and Cultural Rights (Articles 15(4), 29, 46 and 350.) 2. Social Rights (Articles 23 and 24) 3. Economic Rights (Articles 244 and 275) 4. Political Rights (Articles 164(1), 243, 330, 334 and 371.)
2

Indian International and Comparative Law Review Volume 16, No.2, pp.295-335, 2006.

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5. Employment Rights (Articles 15(4), 16(4) and 16(4A).) In addition to these rights Fifth and Sixth Schedule of the Indian Constitution completely deals with the tribal people.

Fifth and Sixth Schedules of the Constitution: The provisions relating to the administration and Control of the Scheduled Areas and scheduled Tribes in any state, other than Assam, Meghalaya, Tripura and Mizoram are contained in the Fifth Schedule to the Constitution. Article 244-A empowers parliament to form an autonomous State comprising certain Tribal areas in Assam and create local legislature or Council of Ministers for such States. The Administration of the Tribal Areas in the State of Assam is carries on according to the provisions of the sixth Schedule. It provides for autonomous districts and autonomous regions.

Constitution of Commissions: The Constitution of India does not define as to who are the persons who belong to Scheduled castes and scheduled Tribes. However, Article 341 and 342 empowers the President to draw up a list of these castes and tribes. Under Article 341 the President after consultation with the Governor with respect to the State, specify the Castes, races or tribes or of groups within castes, races or tribes for the purpose of their constitution. Article 330 deals with the reservation of seats to scheduled tribes in the autonomous districts of Assam. Art.332 provides for the reservation of seats of scheduled Castes and Scheduled Tribes in the legislative Assembly of every State (Except Assam). The Constitution (89th Amendment), 2003 has amended Article 338 and added a new Article 338-A which provides for the establishment of National Commission for the Scheduled Tribes.

National Commission for Scheduled Tribes: The Commission consists of a Chairman, Vice-Chairman and three other members. They shall be appointed by the president of India.

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Steps to be taken for the development of Tribals: The best method to prevent or remove group tensions is to do away with the circumstances and the conditions or the causes for tensions. Measures such as expansion of proper education, healthy literature, formation of healthy opinion, bring about better social adjustment, removal of social evils, paving the way for social reforms, development of common goals, ideals and values, harmony and healthy development of the personality, Improvement in mutual and social contacts, Reduction of economic disparities, Legal reforms and remedies, Healthy groups and organization can be taken to prevent and remove the tensions and difficulties in the tribal lives.

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Constitutional Law Project CONCLUSION

The states which have been given special status have distinct characteristics which differentiate them from other states. They have international borders, hilly terrains and distinctly different socio-economic developmental parameters, according to a study undertaken for 13th Finance Commission. The study says these states have geographical hindrances in infrastructural development. Special status states enjoy certain privileges and exemptions on account of the backwardness or other barriers like unfavorable terrain that prevents it from prospering otherwise. By the Gadgil formula, a special category state gets preference in federal assistance and tax breaks besides significant excise duty exemptions. This is to help improve the socioeconomic conditions of the state by attracting large number of industrialists to establish their manufacturing units inside the state. The four factors taken into account while assigning special status to states were, namely, population, tax effort, state per capita income and the geographical condition of the particular state.

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Constitutional Law Project BIBLIOGRAPHY

D.D. Basu : Shorter Constitution of India, (1996), Prentice Hall of India, Delhi. Constitutent Assembly debates, Vol. 1 to 12 (1989) H.M. Seervai : Constitution of India, Vol. 1-3(1992), Tripathi, Bombay V.N. Shukla : Constitutional Law of India (2000), Oxford G. Austin, Indian Constitution : Comestone of a Nation (1972) M. Galanter, Competing Equalitie : Law and the Backward Classes in India (1984) Oxford

B. Sivaramayya : Inequalities and the Law (1984) Eastern, Lucknow S.C. Kashyap : Human Rights and Parliament (1978) Metropolitan, New Delhi M.P. Jain : Constitutional Law of India H.R. Khanna : Making of India's Constitution

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