Special Provisions: Article 370, Article 371 and the Fifth and Sixth Schedules

Asymmetric federalism

India treats some states and regions differently to accommodate history, geography, culture and the concerns of tribal communities. This asymmetric federalism takes four main forms: the former special status of Jammu and Kashmir (Article 370), special provisions for certain states (Articles 371 to 371J), the Fifth Schedule for Scheduled Areas, and the Sixth Schedule for tribal areas in four north-eastern states.

Article 370 and its abrogation

Background. The Maharaja of Jammu and Kashmir, Hari Singh, signed the Instrument of Accession on 26 October 1947 after the tribal invasion from Pakistan, ceding defence, foreign affairs and communications. Article 370 (a "temporary provision" in Part XXI) gave the state special status: Parliament could legislate on other subjects only with the state government's concurrence; the state had its own constitution (in force from 1957); and the President could apply provisions of the Indian Constitution to the state by orders (the Constitution (Application to Jammu and Kashmir) Order, 1954 applied most of it). Article 35A, introduced by the 1954 Order, let the state define "permanent residents" and give them special rights in property, jobs and scholarships.

Abrogation (August 2019).

• On 5 August 2019, the President issued C.O. 272, applying all provisions of the Constitution to J&K and amending Article 367 so that "Constituent Assembly of the State" read as "Legislative Assembly of the State" – which was under President's rule, its powers exercised by Parliament.
• On Parliament's recommendation, C.O. 273 (6 August 2019) declared that all clauses of Article 370 ceased to operate except clause (1) as amended – effectively ending special status; Article 35A ceased to operate.
• The Jammu and Kashmir Reorganisation Act, 2019 created two Union territories from 31 October 2019: Jammu and Kashmir (with a legislature) and Ladakh (without one).

Supreme Court verdict (December 2023). In In Re: Article 370, a five-judge bench unanimously upheld the abrogation. It held that Article 370 was a temporary provision; J&K had no internal sovereignty after accession; the President's power under Article 370(3) to declare it inoperative survived the dissolution of the state's Constituent Assembly; and C.O. 273 was valid (though the use of Article 367 to amend Article 370 in C.O. 272 was held impermissible, the result was achieved validly). The Court did not decide the validity of converting a state into UTs, relying on the Solicitor General's statement that statehood would be restored, and directed the Election Commission to hold assembly elections by 30 September 2024. Elections were held in September–October 2024, and a government took office in October 2024.

Article 371 to 371J: special provisions for states

These provisions are in Part XXI (Temporary, Transitional and Special Provisions):

• 371 – Maharashtra and Gujarat: the Governor has special responsibility to set up separate development boards for Vidarbha, Marathwada and the rest of Maharashtra; and for Saurashtra, Kutch and the rest of Gujarat.
• 371A – Nagaland (13th Amendment, 1962): no Act of Parliament on Naga religious or social practices, Naga customary law and procedure, administration of civil and criminal justice under customary law, and ownership and transfer of land and its resources applies unless the Nagaland assembly so decides. The Governor has special responsibility for law and order.
• 371B – Assam: committee of the assembly for tribal-area members.
• 371C – Manipur: committee of members from the hill areas; the Governor reports annually on administration of hill areas.
• 371D and 371E – Andhra Pradesh (and Telangana): equitable opportunities in public employment and education for different parts of the state; 371E provides for a central university in Andhra Pradesh.
• 371F – Sikkim (36th Amendment, 1975): the assembly must have at least 30 members; protection of the rights of different sections; the Governor's special responsibility for peace and social and economic advancement.
• 371G – Mizoram (53rd Amendment, 1986): protection similar to Nagaland for Mizo religious and social practices, customary law and land.
• 371H – Arunachal Pradesh: the Governor has special responsibility for law and order.
• 371I – Goa: the assembly must have at least 30 members.
• 371J – Karnataka (98th Amendment, 2012): a separate development board for the Hyderabad–Karnataka region (now called Kalyana Karnataka), with reservation in education and jobs for people of the region.

The Fifth Schedule – Scheduled Areas

The Fifth Schedule deals with the administration and control of Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura and Mizoram. The President declares Scheduled Areas (after consulting the Governor) and can increase, decrease or alter them. At present, Scheduled Areas exist in ten states: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan.

Key features:

• The Governor reports to the President annually (or when required) on the administration of Scheduled Areas; the Centre can give directions.
• Each such state must set up a Tribes Advisory Council of up to 20 members, three-fourths of whom are ST members of the state assembly; it advises on welfare and advancement of STs.
• The Governor can direct that an Act of Parliament or the state legislature does not apply to a Scheduled Area, or applies with modifications; and can make regulations for peace and good government, especially to prohibit or restrict transfer of land by or among STs, regulate allotment of land, and regulate money-lending to STs.
• The PESA Act, 1996 extended panchayats to Fifth Schedule areas with powers for the gram sabha (see the Local Government module).

Samatha judgment (1997): the Supreme Court held that transfer of tribal land in Scheduled Areas to non-tribals, including private mining companies, was void – reinforcing protection. Niyamgiri (Orissa Mining Corporation, 2013): the Court held that gram sabhas must be consulted on whether mining affects the religious and cultural rights of forest dwellers (the Dongria Kondh rejected bauxite mining).

The Sixth Schedule – tribal areas of the North-East

Applies to tribal areas in Assam, Meghalaya, Tripura and Mizoram (Article 244(2) and 275(1)). These areas are administered as autonomous districts; the Governor can organise or re-organise them and divide a district with different tribes into autonomous regions. There are currently ten autonomous district councils: three in Assam (Bodoland Territorial Council, Karbi Anglong, Dima Hasao), three in Meghalaya (Khasi Hills, Jaintia Hills, Garo Hills), one in Tripura (Tripura Tribal Areas) and three in Mizoram (Chakma, Lai, Mara).

District councils have 30 members – up to four nominated by the Governor and the rest elected on adult franchise – for five years (the Bodoland Territorial Council has up to 46 members). They can make laws on land, forests (other than reserved forests), canal water, shifting cultivation, village administration, inheritance of property, marriage and divorce, social customs and others – with the Governor's assent. They can set up village councils and courts for disputes between tribals, collect land revenue and impose certain taxes. Acts of Parliament or the state legislature either do not apply to these areas or apply with modifications as directed by the Governor (or the President for some). The Governor can appoint a commission to examine their administration.

Demands and debates: Ladakh's civil society has demanded inclusion in the Sixth Schedule and statehood; Manipur's hill areas have Hill Area Committees under Article 371C rather than the Sixth Schedule; and the 125th Amendment Bill (2019), to strengthen the councils' finances and powers, has not been passed.

Common traps

• Fifth Schedule: ten states; Tribes Advisory Council (20 members); President declares Scheduled Areas.
• Sixth Schedule: only Assam, Meghalaya, Tripura and Mizoram; ten autonomous councils.
• 371A Nagaland, 371G Mizoram – customary law and land protected; 371J Karnataka (Hyderabad–Karnataka).
• The 2023 Supreme Court judgment upheld the abrogation of Article 370 and called it a temporary provision.