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Diverse Laws: Making India One Nation

The Constitution is a living organism. It has no limitations, it keeps on evolving with the time. Lawmakers have interpreted it in various ways and when any bill, bye laws are passed, it depends on how one interpret the wordings of law. The 1st Article of the Constitution of India says, India, that is Bharath, shall be a Union of States.

India got independence in 1947 and now it has entered into an era of cooperative federalism where the harmonious construction among the states can be seen. According to the Indian Constitution, India is a state of Union that means all the state are integral part of country as well as Union and provincial governments has to work together. Apart from this, Indian federation has been described as quasi-federation.

When India got independence, every states had not been formed. The division among states continued. As India’s religion, culture and heritage is so diverse in nature with a variety of population lying from poor to rich, lower and backward classes to upper classes, unreserved to reserved category and so on. The term Unity in Diversity refers to the state of oneness or togetherness in spite of presence of immense diversity.

For example, the reservation of SC/ST/OBCs has always been questioned by the people who belong to general category. The whole point is that if they were provided equal status earlier in the society, then they would have not been provided reservation as a special status in the society. If not, then they would have never get what they are eligible for. Thus, so as to protect the interest of the states which have been formed earlier and have faced problems in any way, they have been provided special status under the Constitution of India. The major example is Article 370, i.e., it provides the special status to Jammu & Kashmir under the temporal authority.

It has its own Constitution and some of the Indian laws are also not applicable to the state. Then and now, people have asked for the deletion for this article. But the history reveals another story. At present, Article 1 and Article 370 applies to the constituent of J&K only.

India had been at war with Pakistan over J&K and the situation was not normal and usual. Part of the State’s territory was in the hands of rebels and enemies. Even though, Kashmir was one of the princely states but not yet ripe for integration. Further, the UN brought an entanglement which would end only when the Kashmir problem is satisfactorily resolved.

The hope is still alive that one day the Kashmir will also integrate with India like other states and it would be possible when there is absolute peace. Likewise J&K, other states like Maharashtra and Gujarat (Article 371), Nagaland (371A), Assam (371 B), Manipur (3717 C), Telangana (371 D), Sikkim (371 F), Mizoram (371 G), Arunachal Pradesh (371 H), Goa (371 I).

The special status is given mainly on the basis of low resource base, hilly and difficult terrain, low population density, sizable share of tribal population and hostile location. Everything happens for a reason and the reason behind giving the states a special status is valid. The concept of equality has been misinterpreted even in an enormous way.

Where the equality among equals should be preached, the constant tussle among the states, religion, caste or any example that can suffice the explanation. There is a need to have a common understanding that if two states can’t stand together at one position where one faces minuscule problems when it comes to resources, governance or any other important factor and for the other state, the struggle continues. When the special power is provided to any state, it is for their social and economic welfare and to uplift them in the area where they lack.

For example, the Constitution has given Nagaland the notwithstanding power under Article 371A(1)[i] where no act of Parliament would be applicable in religious or social practices, customs, administrations and land and its resources unless the Legislative Assembly decides by the resolution. Since, majority of the Nagas are tribes and their customary laws, traditions needs to be preserved in order to not lose its origin. More than 70% of the population is dependent on the natural resources for their survival and if any other authority other than the state has power to make laws on it, then people who are residing there might get affected in a filthy manner and then Parliament may work according to its own whims and fancies.

Along with this, it is not wrong to say that the Parliament must hold supremacy over state assemblies. But whenever there is a conflict between the general law and the specific law, the provisions of the special law would prevail.[ii] The object of an interpretation of a statute is to ascertain the intention of the Legislature enacting it.[iii] To ascertain the literal meaning, it is equally necessary first to ascertain the juxtaposition in which the rule is placed,[iv] the purpose for which it is enacted and the object which it is required to sub serve and the authority by which the rule is framed.[v]

Yues Lejeune has considered that Federalism consists of a delicate balance between the unity and the diversity of its components and it is true, specifically with regard to the foreign policy. Although the principle of the unity of the federal state under international law does not go against the development of external relations specific on the sub-national units-whether or not they are governed by international law it does, however, imply fulfilling the state’s international obligations and safeguarding the coherence of its foreign policy.[vi]

India is not the only country who follows a federal system. Countries like USA, Canada and Australia have also federal system and it is necessary to see whether there is any conflict among the states and if there is any harm done to the integrity of the nation. There are 4 important characteristics of the federalism, i.e., consensus, cooperation, conflict and chaos which interact with values, issues and policymakers in distinct combinations or patterns.[vii]

The equal footing doctrine, also known as equality of the states, is the principle in United States constitutional law that all states under the Constitution since 1789 enter on equal footing with the 13 states already in the Union at that time.

In Australia and Canada, states do not have equality and Indian Constitution is similar to Canadian constitution where states can have special status. Also, taxing structure in India is made with a view that all tax collected by states goes to consolidated fund of India and then according to the needs and requirements, Finance Commission and NITI AAYOG distribute to states. Further, Canada superimposed the British Parliamentary system with a federal system to entertain the different interests of English Canada and Quebec. This structure allowed the two levels of the government to operate freely within their respective spheres of powers.[viii]

Thus, it can be analysed that as nation-states become more interconnected and interdependent, it leads to an infusion of central government responsibility and a fundamental shift in the institutional structure of the global system.[ix]

Thus, so as to maintain the integrity of nation and to run nation as a whole with various geographical, territorial, historical, linguistic, religious difference, it is necessary to give special provisions to some state.

End-Notes
[i] Special provision with respect to the State of Nagaland
(1) Notwithstanding anything in this Constitution,
(a) no Act of Parliament in respect of
(i) religious or social practices of the Nagas,
(ii) Naga customary law and procedure,
(iii) administration of civil and criminal justice involving decisions according to Naga customary law,
(iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides;
[ii] National Insurance Co. Ltd. v. Atarer Nachha, 2009 (4) T.A.C. 573.
[iii] Institute of CA of India v. M/s Price Waterhouse, A.I.R. 1998 S.C. 74.
[iv] Member – Secretary AP State Board for Prevention and Control of Water Pollution v. Andhra Pradesh Rayons Ltd., A.I.R. 1989 S.C. 611 (India).
[v] Mohan Kumar Singhania v. U.O.I., (1992) 1 S.C.C. Supp 594 (India).
[vi] Yves Lejeune, Participation of Sub-national Units in the Foreign Policy of the Federation in Raoul Blindenbacher and Arnold Koller (eds.), Federalism in a Changing World Learning from Each Other, McGill-Queen‟s University Press, London, 97 (2002).
[vii] Larry N. Gerston, 5 (2006).
[viii] Thomas. O. Hueglin, Canada: Federalism Behind (Almost) Closed Doors in Raoul Blindenbacher & Abigail Ostein (eds.) 3, Mc-Gill Queen’s University Press, London,13,  (2005).
[ix] Edward T. Hayes, Changing Notions of Sovereignty and Federalism in the International Economic System: A Reassessment of WTO Regulation of Federal States and the Regional and Local Governments Within Their Territories, North-Western Journal of International Law & Business, Volume 25, 2004 retrieved from http://scholarlycommons. Law.

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