Constitutional concessions and protections to specific groups in India
- Part 1 -

Dr N Somorendro *

A Constitution is the written fundamental law which governs a modern State. It acts as the guiding values and principles for the governments and the citizens of the State. The elements of a State (leibak ama) -territory, population, government and sovereignty are defined and regulated by the Constitution.

A written Constitution is a must in democratic countries specially in federal systems like USA and India [which have division of powers between the two levels of governments]. A Constitution is a living one with amendments as per requirements of the time. The progress of a State, welfare of its citizens and unity of the nation can be achieved only by following the Constitution and democratic principles.

The Constitution became the foundation of new political system in India from 1950. The political system has a mixture of Parliamentary Federal Democratic Republic with socialist and secular principles along with protection of linguistic and religious minorities.

No other category of minorities is recognised. It was historic transformation given the long British colonial rule under which the Indians were deprived of their rights to take decisions. The Constitution gives the supreme power to the people of India. The Constitution was the imagination and vision of the leaders of independent India and a hope for the masses.

An overview of the Constitution of India and to evaluate its success and failure in the 70th year of its adoption is necessary. It was adopted on 26th November, 1949 and came into force on 26th January, 1950. The Constitution declares India as a Sovereign Socialist Secular Democratic Republic and promises justice, liberty, equality and fraternity to the citizens, dignity of the individuals and ‘unity of the Nation’.

Special concessions and protections to certain States, tribal areas and certain groups are given in the Constitution. The working of the Constitution in the last 70 years has mixed responses. Large sections of the society are still deprived of basic rights including right to education and equal livelihood opportunities.

India has 74% literacy rate [2011 Census] along with massive poverty and huge unemployment including those groups who are given concessions and protections under the Constitution. India still is the winner of the consolidation prize as the largest functioning democracy in the world by not becoming under military rule or dictatorship. The changes of governments take place through periodic elections.

Background of the constitution making and features of the Constitution must be understood first. These include the issues like the lack of representation including Princely States like Manipur in the constitution making process, large borrowing from the British Colonial India enacted Government of India Act, 1935 and liberal bias with enforceable Fundamental Rights in Part III but non-enforceable the socialist and Gandhian values in Directive Principles of State Policy in Part IV.

The partition of India in 1947 and integration of over 500 Princely States including Manipur into India after 1947 were the other issues.

The partition of British Indian Provinces into Pakistan and India on religious lines led to the adoption of a highly centralised federal system. It also influences migration and communal relations. The partition forced the present North East to connect India only by 2% of the region’s boundary in Siliguri ‘chicken neck’ in West Bengal.

The remaining 98% of the region is surrounded by five countries of Pakistan [by Bangladesh from 1971], Myanmar, China, Bhutan and Nepal. The partition blocked existing trade, commerce and other natural links and a key factor to look the region largely from the narrow security perspective.

Historical deficit in education, geographical constraints and the continuation of British colonial era laws and administrative systems, undemocratic traditional political institutions and non-modern economic system should be kept in mind.

The India federal system gives more administrative, legislative and financial powers to the Union Government. Under the Seventh Schedule (Article 246) Union Lists has 97 matters including defence, foreign affairs, citizenship, currency, banking, railways, interstate migration, coordination and determination of standards in higher education, census, excise duties, corporation tax, income tax etc on which Union government has the exclusive powers.

State lists has 66 matters including public order, police, intoxicating liquors, land, agriculture, land revenue, taxes on lands and buildings, sale of electricity etc on which State governments can exercise powers. Concurrent lists has 47 matters including criminal law, marriage, adulteration of foodstuffs, forests, social security, economic and social planning, education, price control, newspapers, electricity etc on which both Union and State governments have the powers.

The President’s Rule under Article 356 has power to convert federal system into unitary system by taking all the powers of the States by Union government [used over 115 times].

The Constitution is rigid only in about eight areas on which ratification by not less than one half of the States is required [Article 368]. The rest are flexible as the Union government has the sole power to amend the Constitution. The Parliament can create new States or alter the boundary of the existing States under Article 3.

The latest examples include creation of State of Telangana in 2014 out of Andra Pradesh and creation of two Union Territories of Jammu and Kashmir and Ladakh by dividing the State of Jammu and Kashmir in 2019. Nagaland in 1963, Mizoram in 1987 and Meghalya in 1972 were created out of Assam. India is permanent and indestructible and its territory can be expanded as happened by the inclusion of Goa in 1961 and Sikkim in 1974.

The centralised federal system is visible in the Constitution. The protection of the States and equality principle of the States are not guaranteed under the Constitution. For instance Rajya Sabha does not have equal representation by the States as it is based on the population. Smaller States like Manipur have only one Rajya Sabha M.P each whereas Uttar Pradesh has 31, Maharastra 19 and West Bengal 16.

In contrast USA federal system guarantees equal representation of two each in the Senate by the States, dual citizenship and the Governors are elected by the States with no provision of President’s Rule. Size and number matter in the Constitution and federal system in India.

Despite separation of powers, the increasing judicial intervention on the actions of executive and legislature shows the power driven politics and breakdown of democratic consensus. The overburden judiciary, delays and large number of pending cases in the courts are serious concerns of the Constitutional values and democracy.

There are some concessions and protections to certain States and social groups under the Constitution. Under Article 370 Special Status given to Jammu and Kashmir was one of the conditions for joining into India by the former Princely State after partition of British India.

Article 370 was not only removed in 2019 but the State was reduced into two Union Territories of Jammu and Kashmir and Ladak. The Acts of Parliament will not apply to Nagaland under Article 371 A and Mizoram under Article 371G on religious or social practices, customary law, ownership and transfer of land and its resources in the two States unless their Legislative Assemblies decide.

Article 371 C recognises the division of Manipur into hills and valley by providing constitution of a Hill Areas Committee in State Assembly elected from the hill areas. The Governor of Manipur has to report to the President of India on the administration of the hill areas in Manipur. However there is no protection of State as a whole as in the cases of Nagaland and Mizoram.

During colonial rule[ 1891-1947], British divided Manipur administration into the hills and valley. The British Political Agent administered the hill areas by separating them from the valley administration. Even today the district administration and land laws in Manipur are largely on hills and valley divisions rather than democratic and administrative conveniences and empowering to the citizens.

Modern land ownership pattern and Manipur Land Revenue and Land Reforms (MLR & LR ) Act, 1960 under which any citizen can buy and sale of land and pay land revenue to the government is in the valley areas only [ about 10% of the total area of Manipur]. Under India’s Democratic Republic Constitution the hill areas of Manipur are still under traditional undemocratic political institutions and not under modern land laws system.

The article is the revised version of the paper presented at the Seminar on 70th Year of Indian Constitution at Y.K. College, Wangjing on 23rd December, 2019.

To be continued .....