Prime Minister Narendra Modi, while campaigning for the Maharashtra Assembly elections, “dared” the Opposition to promise the reinstatement of Article 370 and Article 35-A which his government has cynically removed from the Constitution. If India had a principled Opposition capable of dealing in ideas instead of tired cliches and patronage networks, the short answer should have been “Done! And we think it’s such a good idea that we will also ensure every single state in the Union gets a customised version of Article 370 as well.”
Sounds shocking or outlandish?
It shouldn’t be. Because there are already nine articles of the Constitution like Article 370, creating special provisions for various states, including Karnataka. Yes, there is Article 371-J which allows the President of India to make special provisions for Hyderabad-Karnataka in respect of equitable development and reservation of jobs for those from the region. This was introduced as recently as 2012 by way of the Ninety-Eighth Constitution Amendment.
In fact, I would go so far as to say that the underlying principle of Article 370 -- that some states will be treated differently from others, has probably helped keep the Indian Union together and avoided much, much bloodshed.
Unlike the United States, which is sometimes held up as the ideal federal polity, India’s federal structure operates on a principle of asymmetry -- not every state has exactly the same relationship with the Union government. The basic principle of federalism is that both Union and state governments have equal share in law-making and executive powers, but in different areas. However, not every state need be exactly the same in this scheme. Which is why the Constitution has provisions like Article 370, 371, 371-A and so on, making different special provisions for 10 different states.
Was this part of the original design? Not necessarily. Except for Article 370 itself, all the other articles making special provisions were inserted after Independence. All of them were the result of very specific political movements and demands. Take Article 371-A, for instance, inserted by the Thirteenth Amendment to the Constitution. It applies to the state of Nagaland only and (among other things) guarantees that no law made by Parliament in four key areas will apply to the state without the approval of the Nagaland Legislative Assembly. It was brought in after a 16-point agreement was entered into between the Indian government and the Naga Peoples’ Convention as part of the Naga Peace Accord.
Its importance was highlighted by the fact that immediately after Article 370 was abrogated, Nagaland Governor RN Ravi, who is also the interlocutor for ongoing peace talks with Naga factions, assured them that Article 371-A was not under any threat and was a “sacred commitment”.
Not just Nagaland, even Mizoram is governed by a similar provision (Article 371-G) regarding the application of laws made by Parliament.
While much has been made of the word “temporary” in the heading of Article 370, this was actually put in because of specific historical exigencies at that moment but did not mean that Kashmir’s unique constitutional position was in any way temporary. If it were so, there would be no basis for following this model to deal with other conflicts in the North-East and to accede to political demands across the rest of the country. One of the great features of our Constitution, exemplified in Article 370, is the flexibility to accommodate differences and diversity when needed to preserve the Union. If it weren’t so, we only need to see the examples of Pakistan and Sri Lanka to understand what happens when you try to eradicate or diminish diversity in the name of “nation-building”.
When seen this way, perhaps it’s not so outlandish after all to demand that each state in the Union get its own version of Article 370 -- that each state be allowed to have special provisions in the interests of the unique history, geography, culture or economic needs. The very future of the Indian Union may depend on it.