An Unpleasant Autonomy: Revisiting the Special Status for Jammu and Kashmir

Author(s): GAZALA PEER and JAVEDUR RAHMAN

Source: Economic and Political Weekly, Vol. 47, No. 23 (JUNE 9, 2012), pp. 72-75
Published by: Economic and Political Weekly
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 NOTES

applicable to the State as compared

An Unpleasant Autonomy to others.
(ii) Only Articles 1 and 370 were applied
Revisiting the Special Status to the state of Jammu and Kashmir,

for Jammu and Kashmir while the rest of the articles could only
be made applicable by virtue of presi
dential orders, in consultation with the
Government of Jammu and Kashmir, in
GAZALA PEER, JAVEDUR RAHMAN matters related to the Instrument of
Accession (ioa).
A comparison with the (iii) Under Article 370(1) (b) (ii), the
constitutions of the United States to be battling with the ques president was given powers to pass
and China reveals that
Many parts ofnational
tion of their theexistence
world continue presidential orders over the matters not
even in today's era characterised by the specified in the ioa. However the passing
Article 370 of the Indian "human rights revolution". These parts of such orders was made subject to the
Constitution - which recognises of the world - Kurdistan, Tibet, Jammu concurrence of the state government.

the special status for the state of and Kashmir, etc - are distinct political
Jammu and Kashmir - is neither
against its federal character nor its distinct political identity was accepted
its unitary scheme. It is important
and recognised within the Indian Consti
to restore the "inviolability" of
The de facto usage of this provision has
Article 370 - which has constantly
however been done in a manner that
eroded over time - so that the two
constitutions, i e, Constitution
of Jammu and Kashmir and the
Constitution of India can work
harmoniously and within the
principles of constitutionalism.
Gazala Peer (gazalapeer@gmail.com) and
Javedur Rahman study at the West Bengal
Institute of Judicial Studies, Kolkata.
(iv) Under Article 370(1)®, the power
entities, usually products of war or an of the state government to accord con
empire. In the case of Jammu and Kashmir, currence to the orders passed by the
president in matters other than the
items mentioned in the ioa would end,
tution under the aegis of Article 370. once the state's Constituent Assembly
was convened. Additionally, it states
that the power of the Constituent
has eroded the autonomy guaranteedAssembly to rectify such orders would
to the State, a condition which Patrick
end the day the Constituent Assembly
was dissolved.
Hoeing et al (2010) describe as "a classic
example of a careful calibration of power
(v) Article 370(3) empowers the president
in centre-state relations existing on
to make an order to abrogate or amend
paper only". Article 370. However, the recommen
Consensus seems to be emerging, dation of the state's Constituent Assem
elsewhere, in the belief that these bly was made mandatory in this regard.
regions can work better in the fulfilment(vi) Article 370 would not be abrogated
or amended since no constitutional
of their aspirations if they are given suf
amendment can have effect in relation
ficient autonomy to deal with their own
to the state of Jammu and Kashmir
affairs (Choudhary 2007). It is therefore
imperative to compare the present stateunless applied by order of the president
of affairs in India with similar situations under Article 370. This is because amend
across the world where nations have not ment to Article 370 requires recommend
only recognised the distinct political ation of the Constituent Assembly which
identities of similar regions but havewas dissolved in 1956 after it completed
also given and respected their autonomydrafting the State's Constitution.
in order that they may function well The aforementioned analysis of Article
within constitutional frameworks. 370 highlights the extent of autonomy
that was guaranteed to the state of
Article 370: The Promise Jammu and Kashmir, so much so that it
The relationship between India andwas
theallowed to have amongst others, its
own Constitution, judiciary, legislature
state of Jammu and Kashmir, as expressed
through Article 370 (Noorani 2010),
andisexecutive. Its autonomy was further
as follows: underscored by the fact that residuary
powers under schedule vii of the
(i) Although under Article 238 (which
Constitution of India were vested with
now stands deleted) the state of Jammu
and Kashmir was incorporated as one theofstate government and not with
the states of India, provisions werethe
notParliament.

72 june 9, 2012 vol xlvii no 23 EGE3 Economic & Political weekly

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 NOTES

The powers of the Parliament to make

year 1956. This should have ideally resulted(v) On 30 July 1986, the president made
laws for the state of Jammu and Kashmir
in the ending of the president's power toan order under Article 370, extending
pass orders with regard to matters otherthe application of Article 249 of the
were also restricted. For example under
Article 246, although the unionthan
list the ones mentioned in the ioa. Constitution of India to the state of
would apply to the state of JammuHowever,
and presidential orders were Jammu
in and Kashmir, merely relying
variably passed from 1950 to 1986 per
Kashmir, this was subject to exceptions. on a Rajya Sabha resolution and obtain
Further, Parliament also needed the taining to matters which required con ing the concurrence of Jagmohan, the
state government's concurrencecurrence
for as well as ratification of the then governor of Jammu and Kashmir,
in dissolved" Constituent Assembly. instead of obtaining concurrence of
"now
making laws on subjects not specified
the ioa. These gave the State more
A brief account of the effect of such pres democratically elected legislature (Lone
powers to determine its own laws.1 idential orders on the autonomy of the!995! Noorani 2000).
state of Jammu and Kashmir is enumer The authority of the president to pass
Autonomy Tampered ated as follows (Anand 2010): presidential orders has come up before
(i) From 1954 to 1986, 42 presidential the Supreme Court only three times till
Despite the guarantee envisaged under
by were passed with respect to mat date. Therefore, it becomes imperative
orders
the Constitution, the approach adopted
ters other than the ones specified in the to discuss how the issue was dealt by
India towards the autonomy of Jammu
and Kashmir has resulted in the loss of
ioa despite the fact that the president'sit. In Prem Nath Koul,3 a constitutional
trust and assurance that the state of powers in this regard should have bench collectively observed that the
Jammu and Kashmir had in its demo expired on dissolution of the state's Con constitution-makers attached great impor
cratic relationship with India. It is not
stituent Assembly.2 tance to the final decision of the Constitu
(ii) The Constitutional (Application to ent Assembly under Article 370(2).4 How
only surprising but also unpleasant to
see how the Constitution of India hasJammu and Kashmir) Order, 1954, app ever, in Sampat Prakash,5 the Supreme
been grossly misused to encroach uponlied almost all the entries of the union Court held a view contrary to its earlier
the autonomy of the State. This encrolist without properly following the projudgment in Prem Nath Koul. It is quite
achment was reflected, rather encourcedure to acquire the concurrence of theinteresting, rather perplexing, to note
aged, in the words of Prime MinisterConstituent Assembly which was con that although the only case which came
Jawaharlal Nehru, who on 27 November vened in 1951. before the Supreme Court till then in
1963, while addressing the Lok Sabha (iii) The major setbacks suffered by the relation to Article 370 was Prem Nath
stated thus: "This process of gradual Constitution of Jammu and Kashmir on Koul, the Court did not even consider or
erosion of Article 370 is going on...we account of such presidential orders are refer to it while deciding on Sampat
should allow it to go on". Nehru was notrestrictions on the powers of the state Prakash and held that under Article 370,
alone in holding such a view. Merely a legislature while at the same time the president can pass orders despite the
year later on 4 December 1964, the thenextending the union's legislative powers, state's Constituent Assembly having
home minister, G L Nanda, asserted thatthe application of the financial provisions ceased to exist (Noorani 2000).
Article 370 could serve as a "tunnel inof the Constitution of India, application In the Sampat Prakash case, while
the wall" to increase the centre's powerof provisions relating to All India Services, taking into consideration the concurrence
and control over Jammu and Kashmir Central Bureau of Investigation (cbi), which the government of Jammu and
(Noorani 2010). application of provisions relating to Kashmir was required to give when
emergency, regulation of the judiciary
Article 370(2) provides that the presi Constituent Assembly was yet to be
under the provisions of the Constitution
dent can pass orders to extend the provi framed, the Court overlooked the ques
sions of the Constitution of India to the of India, the taking away of residuary tion of whether a government can give
state of Jammu and Kashmir with powers and much more (ibid). concurrence after the dissolution of the
respect to subjects mentioned in the(iv) The passing of presidential orders
ioa. Constituent Assembly. While giving the
For application of the provisions has
not not only undermined the autonomy widest possible meaning to the word
of the State but has also put the State
mentioned in the ioa, the presidential modification used in Article 370(1), the
under
order was subject to the concurrence of disadvantage vis-a-vis other Court has allowed the central govern
states. For example, Parliament amend
the state government as long as the state's ment to extend the provisions of the
ed the constitution by means of the
Constituent Assembly was not convened. Constitution of India to the state of
Once the Constituent Assembly was 59th,
con 64th, 67th and 68th constitu Jammu and Kashmir. The consequence
vened, the concurrence given by tional
the amendments for the purpose of of giving such an interpretation resulted
extending
state government was to be put before it, president's rule to Punjab. in the undermining of Article 370 by col
However,
thus, making it the final authority to in the case of Jammu and lusive state and central governments to
confirm such a presidential order.Kashmir, president's rule was imposed supersede the State's Constitution and
and continued merely on the basis of
The Constituent Assembly of the State cut down guarantees.
executive orders from 1990 to 1996
finished its work of drafting the State's Though overlooking a precedent is
Constitution and was dissolved in the (Noorani 2000). not something new to the judiciary, it

Economic & Political weekly GQ52 june 9, 2012 vol xlvii no 23 73

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NOTES

When a federation is "assymetrical", it it would not be an exaggeration to state

has mostly been done in instances where
on result of a compromise between that this legal relationship established
is the
there existed a plethora of judgments
the same subject and reference to regional
each autonomy and national integra between the state of Jammu and Kashmir
tion. In such a case both the State and
and every precedent was not necessary. and India will lose its legitimacy once
Unfortunately when faced withthe
the these terms and conditions are violated.
national government are two separate
question of who is the governmententities
for and both derive their powers Article 370 establishes the relation
from the federal constitution. This combetween the state of Jammu and Kashmir
the purpose of giving concurrence under
Article 370 in the case of Mohammed and the state of India, which otherwise
promise is best described in the words of
Maqbool Damnoo,6 the Supreme Court K C Wheare who states that "....there is aare two separate entities having their
again overlooked the decision ofsingle the independent authority for whole own constitutions. Like in the case of us,
constitutional bench in Prem Nath Koul area in respect of some areas and ...there
where states have come together on the
and held that the "Saddr-e-Riyasat" was are independent regional authorities for basis of the terms and conditions, the
the same as the appointed governor. other matters..." (Basu 2008). Accord state of Jammu and Kashmir has estab
lished the relation with the Constitution
ing to William Riker, federalism is an
Consitutionalism:
outcome of a rational bargain amongof India on the basis of the ioa. The spe
A Comparative Analysis various constituents; such a bargain
cial status originally granted to the state
At this stage, it would be pertinent
may of Jammu and Kashmir thus cannot be
tobe for political or economic gains
(Rao et al 2004).
draw a comparison between the special taken away or allowed to be withered
status granted to the state of Jammu away, as the relationship between the
The state of Jammu and Kashmir enjoys
and Kashmir under the Indian Constitu two states was based on certain terms
greater autonomy and is not governed
tion with that of the federal constitution and conditions laid down in the ioa.
by the general power-sharing scheme of
the of
of the us and the unitary constitution Constitution of India (Anand 1998),
These have to be respected in order to
since, as an independent sovereign
China. The reason behind choosing these retain the legitimacy and moral ground
nation it joined the Indian state on
jurisdictions is the debate on the nature to govern the state of Jammu and Kash
of the Indian Constitution, i e, whether
special terms and conditions mentioned
mir. It is also worth noting that, it is by
the Indian Constitution is federal or in the ioa.9 Here we can draw a similar virtue of Article 37o(i)(c) that Article 1
ity with the federal structure of the of the Constitution of India applies to
unitary, and to establish that irrespective
of the nature of the Indian Constitution constitution of the us (ibid), where the state of Jammu and Kashmir and
independent states joined together on not otherwise. Without it, the state of
the special status granted to Jammu and
Kashmir has to be upheld. the basis of the terms and conditions of Jammu and Kashmir will be released
power sharing. The bargain made by from the union of India.
The US Constitution the state of Jammu and Kashmir with
The adoption of the us constitution inand the bargain amongst the units The Chinese Constitution
India
the year 1787 saw federalism beingofpre
the us thus had similar, if not the Although the Chinese constitution presents
sented to the world in a definite shape
same, legal implications.10 a rigid unitary system where the central
(Basu 2008). The units of the us federa
Thus, the bargain made between the government controls the whole of the
state of Jammu and Kashmir and India
tion were assigned symmetrical status country, it makes provisions for setting
and authority.7 Since most of the federal
can be understood to be a political one. up of special administrative zones under
principles flow from the American fed
The bargain was that in return for the Article 31 of the constitution of China.11
eral structure, literature on the subject
jurisdiction over the three subjects of By virtue of Article 31, Hong Kong was
of federalism assumed that a true feder
accession, the State will be protected. accommodated into the People's Republic
Thus the terms and conditions of the
ation is where there is a symmetrical of China on 1 July 1997, under the "one
distribution of power (Basu 2008).bargain
How gave India a basis to govern thecountry two systems principle". The
state of Jammu and Kashmir. However,constitutional order in Hong Kong got
ever this is not true, since we find many
countries with a federal constitution
which do not follow a fixed pattern
(ibid). There are federations in the world Permission for Reproduction of Articles Published in EPW
where the constituent units do not enjoy
symmetry in power sharing, for example No article published in epw or part thereof should be reproduced in any form without
in Malaysia. In case of Malaysia, Sabah prior permission of the author(s).
and Sarawak are given special status
under Part xiia of the constitution of A soft/hard copy of the author(s)'s approval should be sent to epw.

Malaysia which makes the constitution of

In cases where the email address of the author has not been published along with the
Malaysia asymmetric. In India too there
articles, epw can be contacted for help.
are many states which enjoy special
status vis-a-vis other states.8

74 june 9, 2012 vol xlvii no 23 B5B3 Economic & Political weekly

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 NOTES

established with the establishment of upon the autonomy of the state of has a Constitution of its own. Similarly, the
State of Jammu and Kashmir has a right to
the basic law for the special adminiJammu and Kashmir. The Indian state determine its own Constitution, (iii) An Ameri
strative zone of Hong Kong, a law passedmust work within the principles of con can has dual citizenship, i e, a person is a citi
zen of the State as well as citizen of the federa
by the highest lawmaking authority, thestitutionalism in order to retain legiti
tion. Similarly, in case of Jammu and Kashmir
National People's Congress. Hong Kong macy to rule over the State. To sum up, it a resident has in a way two citizenships. He/
she is a permanent resident of the state of Jam
thus enjoys autonomy in having a constiis important to restore the "inviolability" mu and Kashmir under section 6 of the Consti
tution of its own; having independent of Article 370. tution of Jammu and Kashmir. He/she is also a

executive, administrative and judicial citizen of India. This arrangement gives him/her
different sets of privileges and immunities un
powers; controlling its own external NOTES der law. (iv) In the United States there is a dual
affairs, etc, despite the sovereignty of 1 See Anand system of administration of justice one for the
(2010) (although in case of subjects
State and a separate systems Federation. Simi
China over Hong Kong being recognised mentioned in the IOA, it only required consul
larly, before passing of the controversial Presi
tation of the state government).
in the constitution of Hong Kong itself.12 2 Nanda (1949) - "we have also agreed that dential Order of 1954 the State of Jammu and
the
Kashmir had a separate judicial system and the
The arrangement of Hong Kong within will of the people through the Instrument of
Supreme Court had jurisdiction only over the
the constitution of China demonstrates the Constituent Assembly will determine the of external affairs, communication
matters
Constitution of the State as well as spheres of
and defence.
the autonomy it enjoys without under union jurisdiction over the State...you will re
11 Benny (2003) - "The State may establish spe
member that several of these clauses provide
mining the sovereignty of China. Thus, cial administrative regions when necessary.
for the concurrence of the government of Jam
The systems to be instituted in special adminis
even in a rigid unitary constitution, a mu and Kashmir state. Now, these relate par
trative regions shall be prescribed by law en
ticularly to matters which are not mentioned in
state or region can be accommodated acted by the National People's Congress in the
the Instrument of Accession, and it is our com
because of the reason of special circum mitment to the people and the government light of the specific conditions." Two SAZ have
of
Kashmir that no such additions should be made been set up, i e, Macau and Hong Kong.
stances which are reflected in the pream 12 Ibid - "...the People's Republic of China has
except with the consent of the Constituent
ble of the constitution of Hong Kong. Assembly which may be called in the State for decided that upon China's resumption of the
the purpose of framing its Constitution. In exercise of sovereignty over Hong Kong, a
The circumstance for the special status Hong Kong Special Administrative Region will
other words, what are we committed to is that
of the state of Jammu and Kashmir was these additions are matters for determination be established in accordance with the provi
sions of Article 31 of the Constitution of the
the ioa signed between India and the of the Constituent Assembly of the State"; See
People's Republic of China, and that under the
also Noorani (2000).
monarch of the then country of Jammu 3 Prem Nath Koul vs State ofJammu and Kashmir,
principle of 'One Country, Two Systems', the
and Kashmir. socialist system and policies will not be prac
AIR 1959 SC 749.
tised in Hong Kong".
4 See Noorani (2000) - "The Continuance of the
Exercise of Powers Conferred on the Parlia
Conclusions
ment and the President by the Relevant Tempo
REFERENCES
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