INTRODUCTION

1.1 Brief Preview of J&K state

The state of Jammu and Kashmir is one of the twenty-nine federal

constituent units in the Indian federation, which enjoys special status under Indian
constitution, despite there is no expression like „special‟ in the written text of
article1rather the marginal note to the said article titled as temporary provisions
with respect to the state, was incorporated to regulate federal relations with the
union of India. Actually the expression “special” itself was inserted by
constitutional amendment2 in the head note of part XXI to the constitution which is
now written as temporary, transitional and special provisions3

No doubt, the constitution of India is supreme law of the country which is

not fully applicable to the state even after the laps of more than six decades since
the enforcement of said constitution due to special constitutional provisions
applicable in the state under article4which was incorporated by the constituent
assembly of India as temporary measure keeping in view the prevailing conditions
in the state at the time of accession with union of India, but unfortunately said
provision still operates as temporary provision with respect to J&K state, the
reason as pointed out by the supreme court of India in 1968, that situation has not
materially changed after 1950 with regard to the status of article 370, as such it
will operate as temporary.

Hence the expression constitution of India in relations to the state of

Jammu and Kashmir is construed with respect to only those provisions which are
made applicable in the state by way of the constitution orders issued by the
president of India exercising power conferred on him under article 3705 for this

1
Article 370; The constitution of India
2
Constitution (13th Amendment) Act,1962
3
Op.cit.Ref.1;Articles 369 to 392
4
Op.cit. Ref. 1
5
First of such order was issued in 1950 which later on was superseded by another similar
constitution order of 1954 and thereafter from time to time various Constitution(Amendment)orders
were being issued with last such order of 1994
1
purpose. It may be due to the unique constitutional position of the state that all
legislations of the union parliament and constitutional provisions enforceable in the
rest of Indian territory do not apply here in this state, which can be considered as
an assertion in favour of expression special status of the state. Yet there are various
other states in India, for which special constitutional provisions were incorporated
to deal with peculiar conditions of the respective states6 but special provision
(status) is not at par with the state in the Indian federation, it may be due to
prominent reasons that there was no bargaining by those states with the union of
India for such provisions to be incorporated in the constitution as done by the state
of J&K at the time of execution of instrument of accession or thereafter as well.
The other important aspect of the state‟s relations with union of India is, that part
VI in the constitution of India which deals with states executive is not applicable in
this part of Indian territory because for this purpose the state of Jammu and
Kashmir has its own constitution framed by the J&K constituent assembly
convened in pursuance to the constitutional provisions7

Actually the state of Jammu and Kashmir became an integral part of India
after the execution of instrument of accession (IOA) by then ruler of the state8 and
is now enlisted in the list of states enumerated in schedule9 appended to the
constitution. It is pertinent to mention here that there are only two provisions in the
constitution of India i.e. Article 1 and article 370 which apply to the state on their
own, whereas for all other provisions the procedure prescribed under article 370 is
required to be followed provided that either consultation or concurrence of the
state government is mandatory for the extension of any other provisions of Indian

6
Article 371,State of Maharashtra and Gujarat ; Article 371-A for Nagaland; 371-B for Assam;
371-C for Manipur; Article 371-D for Andhra Pradesh; Article 371-E to deal with central university
for Andhra Pradesh; Article 371-F for Sikkim; Article 371-G for Mizoram; article 371-H state of
Arunachal Pradesh; article 371-I state of Goa and last one article 371- J for the state of Karnataka
7
Op.cit Ref.1,Article 370(2)
8
26th day of October 1947 , Now the day is celebrated every year as day of accession with Union
of India by the state of Jammu and Kashmir
9
Schedule First, The Constitution of India
2
constitution to state and for this purpose there are various constitution orders10
issued by the president of India w.e.f 1950 to extend almost all constitutional
provisions in the state except for few parts11 which still do not apply here whereas
certain parts also apply with certain exceptions and modifications which are
discussed in detailed in the ensuing chapter. Furthermore Indian parliament has
limited jurisdiction over the state and can legislate only on those matters which are
assigned by state of J&K and listed either in union or concurrent list and all other
subjects of the legislations are treated as residuary for the exclusive jurisdiction of
the state legislative assembly because there is no state list to delimit the state
legislative power as per the constitutional framework applicable to the whole
country.

It is not out of place to mentioned here that researcher has deliberately

opted for the expression “Special Status” referred the title of his research hence the
topic for present research work is, “The Special status of Jammu and Kashmir in
the Indian Federation: An Analytical study” to analyse the special status in the
Indian federalism in terms of legislative, executive and financial power enjoyed by
the state as per the distribution of powers between union and state in general
perspective .The main focus in the present research is on certain expressions used
in the topic viz. “special status” to be covered by analysing article 370 of the
Indian constitution and other one is “Indian federalism” means division of powers
between union and state governments like legislative, administrative and financial
power to be highlighted by analyzing part XIth and XII of the Indian constitution
with special reference to the state of Jammu and Kashmir in preview of the
federalism and its evolution in India after 1950. So far as the special status of the
state is concerned it is suffice as discussed above, a conceptual analysis of the

10
Constitution(Application to Jammu &Kashmir) Order,1950 was first of such order to apply
Indian constitution in state at par with other part of the union of India That detailed constitution
order 1950 is shown as in Annexure-II.
11
Part IV,IV-A,VI,IX,IX-A which are relevant in federal aspect whereas other parts like VII,VIII &
X also are not applicable , hence these are eight parts which do not apply in state of Jammu and
Kashmir
3
Indian federalism along with other related issues are discussed in order to
understand as follows

1.2 Federalism: A Conceptual Analysis

Every state has a legal document to act as source of authority for the
different organs of the government which is commonly known as the constitution
in the legal system of the world. It may be written, unwritten, unitary or federal but
always dynamic in nature to meet the emerging needs of the society. Hence, it is
rightly said that constitution of a nation is not an end, but a mean to achieve certain
ends, which is defined as a legal document in which various governing principles
are established, functions and procedural aspects of the government are specified
and being a legal and social document in democracy, it enjoys a special
significance and accords legal validity to the state‟s actions as we have seen in
India especially after the landmark judgement of the supreme court in fundamental
rights case(1973) where in the doctrine of basic structure was laid down to accord
transcendental position to the constitution to immune it from whimsical amending
power of the Indian parliament

In this regard the political scientists classify constitutions of the different

states according either to amenability like it liberal or rigid or based on division of
powers i.e. unitary or federal or it may be written or unwritten. So far as the
division of powers between national and provincial government is concerned the
American constitution was first one to be called as federal constitution latter on
followed by almost all other federal states like Canadian, Australian and India with
certain modifications as per their suitability keeping in view their local
circumstances.

In this respect according to A.V. Dicey, when the strength of a state is

concentrated in the hands of one visible sovereign power it may be called as
unitary constitution/state and in case of federal constitution there is distribution of

4
force of state among a number of co-ordinate entities, each of them originates from
and controlled by the same constitution of the country12.

Unequivocally the Indian constitution has all the basic features of a federal
constitution viz. division of powers between federal and provincial governments13,
supremacy of constitution, written constitution14 and an independent arbitrator15.In
this context the apex court of India in the case of Kesavananda Bharati v State of
Kerala (1973) held that federalism is one of the basic features of the Indian
constitution which cannot be altered by parliament. It is not mandatory that
expression “federation” should be there in written text of the constitution, because
mere division of powers is sufficient for being a federal constitution wherein the
extent of such division of powers acts as a scale to measure the accent of
federalism in a federal framework which normally differs from constitution to
constitution based on the pattern for the distribution of powers as we have seen in
the case of USA, Canada, Australia and Switzerland and India etc.

As per Professor K.C Wheare, Indian union is a unitary state with

subsidiary federal features rather than federal state with subsidiary unitary features
because there are various constitutional provisions characterized as anti-federal in
nature and federal provisions with centralized tendency e.g. the doctrine of federal
supremacy as well as the principle of repugnancy constitutionally recogonised in
India.

Further the expression “federalism” is derived from Latin term “Foedus”

which means an agreement or a convention. Thus a federal state is the result of
coming together two or more independent states or units to form a federal state like
USA, Canada or Switzerland and Australia etc. So far as the case of India is
concerned both federal form of government as well as a federal constitution are

12
The association of several states is called a federal nation whereas the concept is called
federalism
13
Op.cit.Ref.9,Part XI & XII
14
It has more than 450 articles, XXII part and XII schedules
15
The Supreme Court (Articles 124-147) with exclusive jurisdiction to deal with federal disputes
under Article 131
5
there. The essence of federalism is that the federal government at national level
and the provincial governments should be independent of each other in their
respective constitutionally demarcated areas of actions like legislative,
administrative and financial and their jurisdiction of exclusive affairs cannot be
altered unilaterally by either government16

In this context the term “principle” may be understood as „the method of

dividing powers, so that the general/federal/union and regional/provincial/state
governments17each within their respective sphere are co-ordinate and independent
and not sub-ordinate to each other. The existence of co-ordinate authorities
independent of each other is the essence of the federal principle wherein the
supreme sovereign power is vested with central organ which ultimately controls
the state in a unitary form of government.

Moreover federalism is not static but a dynamic concept. It is always in the

process of evolution and constant adjustments, as we have seen in our
constitutional set up that jurisdiction on certain subjects has been transferred from
state to union or concurrent list by way of constitutional amendments made by
parliament as per the needs of the time.18 Hence in the present scenario it can be
said that federalism is not merely a division of powers but of the responsibilities
and functions which are dynamic in nature19.The classical concept of the
federalism provides for two sets of governments with coordinate jurisdiction to
operate in an isolated sphere in somewhat a water tide compartments is nowhere
functional in reality due to the emergence of new concept of welfare state. The

16
Article 368 deals with power and procedure for the amendment of the constitution
17
It is to be noted here that in federal state there are different nomenclature for national and
regional governments like union and state in India, federal and provincial, commonwealth and
states and federal and local government etc.
18
Number of entries decreased in state list from 66 to 62, on the other hand there is increase in the
concurrent list by corresponding number(48 to 52) and so far as union list is concerned, three more
entries were added to this list i.e.92 -A,92-B and 92-C
19
Recently, abolition of age old institution of Planning Commission and its successor i.e. NITI
Aayog with main aim to foster cooperative federalism in India . The constitution of Inter-State
council under article 263.The provision for the delegation of certain function by unions or state
government and on the other side fora like conference of Chief Ministers, Finance Minister of the
state, Governor of the state on various issues
6
commission of centre-state relations in India has rightly said that federalism is not
a static paradigm but a changing notion because the most of centre sponsored
schemes (CSS) in India are with respect to the state subjects and are being
implemented by the state executive with financial support from union government
and other issues in the perspective of globalization where federal government has
to depend on states for their implementation20

1.3 Federal versus Unitary: Historical View

Mahatma Gandhi, the father of nation was in favour of a decentralized

structure and had expressed preference for Panchayat or village-based federation in
the country. Whereas the chairman of drafting committee Dr. B.R. Ambedkar in
the constituent assembly of India and Prime Minister Jawaharlal Nehru, the first
prime minister of India were in favour of unitary state while home minister Sardar
Vallabhbhai Patel and many others stood for the cause of federalism and finally
after prolonged debates settled for unitary biased federalism in the backdrop of
challenges for newly emerged independent nation. Moreover, the constitution
described India as a “Union of States” implying that its unity is indestructible with
common citizenship rather than a dual citizenship like USA. So the framework
what we have adopted departed significantly from all existing models of federalism
in the world in order to deal with the emerging needs of the society. The supreme
court of India observed in the context of Indian federation that it is a compromise
between economic integration and political autonomy in view of various
provisions for the freedom of trade and commerce; exclusive taxation authority
along with intergovernmental finance transfer and last one is the provisions for
grant in aid21.

1.4 Indian federalism: Critical Analysis

It is not an easy question to place Indian constitution in either of the two

categories of the constitution i.e. unitary or federal usually opted by the different

20
United Nations Millennium Development Goals and Climate Change etc
21
AIR 2010 SC 1476
7
states of the world. As such in this context the different view son the issue are
analyzed like the modern agreed definition and concept of federalism has been
more or less is derived from the structure and features of the American
Constitution,22 accordingly in a federal state there is a division of powers between
general and regional authorities which are independent in their own assigned
sphere and coordinate to each other rather than subordinate23 meaning thereby the
constitution of India is quasi-federal in nature and not strictly federal because there
are certain provisions which are anti-federal in nature24.Further Sir Ivor Jennings
was of the view that India is a federation with strong centralizing policy25whereas
as per D.D. Basu the Constitution of India being neither purely federal nor unitary
but a combination of both, because it is a union or a composite of a novel
type26The constitution of India having been drawn in mid-20th century presents a
modified form of federation suitable to the special requirements of the Indian
society, because when Indian constitution was being framed the other federals
were moving towards cooperative federalism so the provisions for the cooperative
federalism were also incorporated in ours as observed by M. C Setalvad 27.

In this context Professor Ronald L. Watts, a renowned expert on

federalism, defends the Indian approach and said that in some cases, where
territorial social diversity and fragmentation is strong, it has been considered
desirable, as in the case of Canada to give federal government sufficient strong and
even overriding powers to resist possible tendencies of balkanization28.Further Dr
B.R. Ambedkar, chairman of the drafting committee in the constituent assembly of
India while replying on the nature of the constitution, said that it would be both

22
K.C. Wheare: Federal Government (London, The English Language Book Society and Oxford
University
Press, ed. 1971) p. 1
23
Ibid.p.33
24
There are many anti-federal features like Articles 3,155,169,249-253,356 etc.
25
Federal supremacy under articles 246(1), 254, and in financial matters like provision for grant -
in- aid to states by union government
26
Provision for single citizenship, except the state of J&K having its own laws to regulate the status
of the permanent resident in the state and unified judicial system
27
Article 263, provision for the constitution of Inter-state Council
28
Surendra Singh and Satish Misra, Observer Research Foundation ,Issue brief,July,2012
8
unitary as well as federal according to the needs of time and circumstances and it
would work as a federal system in normal times but to deal with extra-ordinary
situations like emergency its unitary form would come in operation29He further
said that the word union is deliberately incorporated in the constitution30 because
the drafting committee (DC) wanted to make it clear that although India was to be
a federation, the federation was not a result of an agreement between union and
states governments, hence states have no right to secede from it, that is why we
called Indian federation as indestructible union of destructible states 31.The country
and people may be divided into different states for the convenience of
administration keeping in view the diversity yet whole country is one integral unit,
all people are its citizens with certain rights and duties emerging from single
source of authority that is constitution of India32.In this direction Prof.
Alexandrowicz opined that India is supposed to have quasi federation mainly
because of the articles 3, 249, 352 to 360 and 371 but another authority on
constitutional law in India H.M. Seervai defends the power of parliament to alter
the boundaries of states only by extra constitutional agitations the states have
forced parliament to alter boundaries of States as it normally happened in India till
date33

The framers of Indian constitution were aware of the changing concepts of

functional realities in other federations, the historical background of India and the
special needs of India and framed the constitution accordingly. There are various
constitutional provisions which don‟t make Indian constitution a pure classical
federal like federalism practiced in USA. But merely on the plea that centre
government is given more powers than the states in India doesn‟t render the
constitution not to be called as a federal one because any two federal constitutions
of the world are not identical in nature rather they vary accordingly, and if the rule

29
Part XVIII provides for Emergency Provisions under Articles 352 to 360 of the Indian
Constitution
30
Article 1 states about the name and territory of the union(1) India, that is Bharat ,shall be a union
of states
31
The number of federal units has reached up to 29
32
Constituent Assembly Debates of India, Vol. VII, p.43
33
Bifurcation of the erstwhile state of Andhra Pradesh to create a new state of Telagana in 2014
9
of strict, pure or unqualified federal principle is applied then there would be no
federation and no federal constitution in the world. More over the overriding
powers given to the parliament of India is not absolute but subject to certain
conditions so as to follow the federal principle which cannot be said as negation of
federalism in India34In India the external sovereignty is vested within India
therefore neither the union government nor states, enjoys absolute internal
sovereignty due to the division of powers between the union and states wherein
both the governments have plenary powers to operate over their assigned
jurisdiction like legislative, administrative and financial35. Hence to say that if
federalism is the pre-dominant principle in the constitution then presence of unitary
features make the constitution of India a „quasi federal‟ in law, does not prevent it
from being pre-dominantly federal in practice.

1.5 Federalism in India: Judicial View

It is a debatable issue whether India has a federal or unitary constitution

because of theoretically constitution of India is categorized as federal, unitary,
quasi-federal, as such in order to set at rest the further such debate the judicial view
especially on the constitutional provisions with respect to the federal aspect the
very first case wherein the issue of state sovereignty in the federal set up was
claimed by state of West Bengal v Union of India36wherein the action taken by
union government was challenged and the apex court observed that the Indian
constitution did not propound a principle of absolute federalism by outlining
certain characteristics to negate the concept of traditional federalism in India as
given below

 That there is no separate constitution for each State as is required in a

federal state.

 That the constitution is the supreme document, which governs all the states

34
In legislative field Articles 249,250,252 and during emergency under Articles 352, 355,356 etc
35
H.M. Seervai: Constitutional Law of India (New Delhi, Universal Law Publishers, Vol. I, 4th ed.
2007) p.296
36
State of West Bengal v Union of India AIR 1963 SC 1241
10
  That the constitution is liable to be altered by the union parliament alone
and the units of the country i.e. the States have no power in this regard.

 That the distribution of powers is to facilitate local governance by the states

and national policies to be decided by Centre

 As against a federal constitution, the Indian Constitution renders supreme

power upon the courts to invalidate any action violative of the Constitution.

 That the legislative and executive power of the States is subject to the
supremacy of the union

 Also another reason which militates against the theory of supremacy of

States is that there is no dual citizenship in India. Thus, the learned judges
concluded that structure of the Indian union as provided by the constitution
is centralized, with the states occupying a secondary position hence the
centre possessed the requisite powers to acquire properties belonging to
states.

However Justice K. Subba Rao was of the opinion that under the scheme of
Indian constitution, sovereign powers are distributed between the union and the
states within their respective spheres. As the legislative field of union is much
wider than that of the state legislative assemblies, as such the laws passed by the
parliament prevails over the State law in case of any conflict. In a few cases of
legislation where inter-State disputes are involved, sanction of the president is
made mandatory for the validity of those laws. Further, every state has its own
judicial set up with the state high court at the apex as a result of which it does not
affect the federal principle. The appeal against certain decisions of the high court
lies to Supreme Court of India like in the commonwealth of Australia wherein an
order of the high court can be challenged before the Privy Council and the Indian
federation cannot be negated on this account also.

Besides the powers vested in the union in case of national emergencies,

internal disturbance or external aggression, financial crisis, and failure of the

11
constitutional machinery of the state are all extraordinary powers in the nature of
safety valves to protect the country‟s future .The power granted to union to alter
the boundaries of the states is also an extraordinary power to meet future
contingencies but subject to certain limitations which are also imposed by the
constitution itself. Hence in their respective spheres i.e. both executive and
legislative of union and states are supreme. Therefore the minority view expressed
by Justice Subha Rao has consistency with the principle of federalism incorporated
in the constitution.

Another case came before the apex court to deliberate on the nature of
Indian constitution was State of Rajasthan v Union of India37,wherein the Chief
justice of India observed that Indian constitution is more unitary than federal with
appearance of federal structure but the extent of federalism is largely watered
down by the needs of progress and development of a country which has to be
nationally integrated, politically and economically coordinated and socially,
intellectually and spiritually up-lifted. It was stated that even if it is possible to see
a federal structure behind the establishment of separate executive, legislative and
judicial organs in the states, it is apparent from the provision illustrated in article
356 that the union government is entitled to enforce its own views regarding the
administration and granting of powers in the states and further held that it was the
prerogative of the union parliament to issue directives if they were for the benefit
of people of states and were aimed at achieving the objectives set out in the
preamble of the Indian constitution.

In the case of S.R. Bommai v Union of India38 four opinions were rendered,
expressing varying views. Justice Ahmadi, opined that in order to understand the
true nature of Indian constitution, it is essential to comprehend the concept of
federalism. The essence of federation is the existence of union and the states and
distribution of powers between them. The significant absence of expressions like
federal or federation in the constitution, the powers of the parliament under articles

37
AIR 1977 SC 1361
38
AIR1994 SC 1918
12
2 and 3, the extraordinary powers conferred to meet emergency situations,
residuary powers, powers to issue directions to the States, concept of single
citizenship and the system of integrated judiciary creates doubts about the federal
nature of the Indian Constitution. Thus, it would be more appropriate to describe
the constitution of India as quasi- federal or unitary rather than a federal.

But Justice Sawant and Justice Kuldip Singh were opposed to this and
regarded democracy and federalism as essential features of the Indian Constitution.
The overriding powers of Centre in the event of emergency do not destroy the
federal character of the Indian constitution. The learned judges elaborated upon the
scope and justified the use of power conferred on the president of India under
article 356 without restricting the scope of independent powers of the respective
states as for every state there is constituent political unit and has to have an
exclusive executive and legislature elected and constituted by same process as the
union government. At this Justice Ramaswamy was of the opinion that end sought
to be achieved by the constitution makers to place the whole country under the
control of a unified central government, while the states were allowed to exercise
their sovereign powers within their legislative, executive and administrative
powers. Truly the essence of federalism lies in the distribution of powers between
the centre and the State. Justice Ramaswamy declared the Indian structure as
organic federalism, designed to suit the parliamentary form of government and
diverse conditions prevailing in India. Whereas Justice Jeevan Reddy and Justice
Aggrawal- opined that the expression „federal‟ or „federal form of government‟ has
no fixed meaning. The Constitution is also of a distinct in character i.e. a federation
with a bias in favour of the centre, but this factor does not reduce the states to mere
appendages of the centre rather states are supreme within their own jurisdiction.

Thus the judicial intervention especially after the above cited historic
verdict led to a wide change in the construction and interpretation in context to the
nature of Indian federalism wherein court opined that democracy and federalism
are essential features of our constitution which forms the part of the basic structure.
In this way we can say judiciary has played the significant role by harmonious

13
construction with regard to the various provisions including various entries listed
in seventh schedule to maintain the centre-state relations to intact the federal
principle because the most abused provisions under article 356 applied by the
union government to topple the popular government in the states was put to
effective control by ruling laid down by apex court of the country. The salient
features of Indian constitution constitute a unique federalism of its own kind not
falling in the line with USA, Canada or Australia which is discussed as under

1.6 Recognition of Diversity

The recognition of linguistic identities as the basis for territorial

organisation surfaced as a major issue in the constituent assembly as such they
provide us an indestructible union of destructible states with no provision for
secession by the federal units. The diversity issue was first solved by creating the
state of Andara Pradesh (AP) and further by granting constitutional status to
various regional based languages39. For the protection of tribal and their culture,
certain provisions are there in our constitution e.g. special provisions with respect
to some states as discussed earlier in this chapter also. The distribution of powers
and responsibilities with minimum chances of overlapping as per the entries of
union, state and concurrent list. So the cardinal principles of our constitution
defined by B.R. Ambedkar in the constituent assembly is in the following words

 That we have a unified judicial system with power to interpret law/s passed
by both union and states legislature

 That uniformity in fundamental laws like civil and criminal or labour

throughout the country

 A common all-India civil Service for important posts to implement the

union government schemes in states while administering the states affairs

39
Schedule VIIIth to the constitution of India and at present there are 22 languages enlisted in this
schedule
14
  A single citizenship for people of the whole country40

1.7 Asymmetric Federalism: The Acceptance of Inequality of States.

The concept of asymmetrical federalism was introduced by Charles Tarlton

in 1965 as the constitutional asymmetrical status being necessary for the protection
of cultural group‟s rights and politics of recognition in the multination country like
the case of Quebec province of Canada inhibited by French speaking population.
Unequal states give rise to the need for constitutionally recognition of inequality to
be constituted into the federal polity in such ways to protect diversity without
sacrificing unity or imposing uniformity. In India, the inequality of states, and of
regions within states, has commonly generated tensions and dissatisfactions. The
asymmetrical federalism and special status provisions, including special fiscal
regimes e.g. general and special grants to certain state under article 275 of the
constitution of India and incentives, have helped to address these problems to some
extent by incorporating special provisions to resolve issues arising from history,
geography and culture diversity in the country sometime with view to accord
special status.

1.8 Judicial Power

The Judiciary is assigned a major role in all the federal systems through the
power of judicial review. The Indian Judiciary has changed its view on the nature
and extent of federalism embodied in the constitution. In this process the very first
phase was marked by literal reading of the constitution and giving the centre
benefit of doubt in most of the cases. The subsequent events, notably the
experience of emergency (1975-77) era has changed the perception of the
Judiciary. The central perspective ceased to be the dominant point for judging the
federal issues. The view point of the states began to be heard with greater attention

40
The state of Jammu and Kashmir has power to regulate the status of their permanent resident in
the state irrespective of constitutional provisions and to provide the constitutionality to such laws in
the state, a new provisions was added by the president under article 35-A in 1954.

15
and respect. It has recognized the trends towards greater assertion of the federal
principles and has supported this development in recent years. The independence
of the Judiciary has been a major pillar of the federal democracy edifice.

In this endeavour the era of 1990s can be viewed as a defining transition for
India‟s polity; they paved the way for a political system more federal than ever
before. The new modes of participation and decision-making emerged through the
mechanism of federal coalitions, to which the parliamentary system and the
constitution have yet to adapt in a formal sense. Besides the federal coalitions, the
power and influence of state-based parties increasingly shapes national policy as
well as the course of centre-state relations. More importantly, single-state and
multi-state parties have engineered, through the political process, an enhanced
degree of participation in national policy-making that they could not achieve
through formal institutions of co-operative federalism. In fact the federal coalitions
have given them participatory opportunities which were denied earlier to states by
union government in India, wherein the two main factors can be considered
prominent for such transitional change in the Indian federalism i.e. globalization
has added a new dimension to the polity along with economic reforms to assign
new roles and responsibilities to the states and second moving factor i.e.
federalization of the party system41.

Interestingly federalism can be classified on the basis of formation like

centralized (integration) federalism e.g. in USA, Australia and Switzerland where
different sovereign political units unite together for the governance of a particular
territory with condition to retain their independency and identity to some extent.
Such type of federalism in India is only with respect to the state of J&K, because
the federal relations of the state with the union of India especially with respect to
the legislative powers is based on certain subjects transferred to the union
government by the state that is why the union list is not fully applicable in this
state as such parliament has limited legislative power. On the other hand

41
Balveer Arora: “India‟s Experience with Federalism: Lessons Learnt and Unlearnt”, A paper
presented at an international seminar on "Constitutionalism and Diversity in Nepal, Organized by
Centre for Nepal and Asian Studies, on 22-24 August 2007,Kathmandu (Nepal)
16
federalism can also be envisaged by decentralization (disintegration) wherein a big
state let the control over its provinces to be governed effectively e.g. USSR and
states reorganization process in India. Therefore we can say that Indian federalism
is the result of both the above cited processes as discussed above.

Furthermore on the basis of distribution of powers, the federalism can be

classified as symmetrical or symmetrical so far as symmetrical federalism is
concerned it means that when all federal units are placed at par with respect to their
powers and representation like USA based of symmetrical federalism. The
territorial extent, legal rights and powers are certain other factors which also
constitute symmetrical federalism whereas asymmetric federalism means
federalism based on equal status but unequal powers and relationships in political,
administrative and fiscal arrangements between the units constituting a federation,
and this asymmetry can be vertical (between central and states governments) as
well as horizontal (among the states in India).

The asymmetric federalism can be De Jure when there is difference in their

legislative power, representative in the central legislative body, their rights and
obligation as prescribed in the constitution e.g. number of MPs in parliament from
different states in India and special provisions for certain states are such examples
in our federal system. On the other hand when as a result of national policy to opt
for bilateral or adhoc deals with the specific federal unit with constitutional
obligations which can be described as a de fact asymmetric federalism e.g.
discretionary grants by union government to states in India

In this perspective if federations are seen as „indestructible union of

indestructible states‟, and centre and states are seen to exist on the basis of
equality; neither has the power to make inroads into the defined authority and
functions of the other unilaterally. However such federalism is rarely at all, seen in
practice. Even when the constitution guarantees near equal powers to the states but
while working on federal systems we have seen the centre dominates in political,
administrative, as well as fiscal spheres. There is considerable volume of literature
on central domination in Indian federalism in the assignment system in the
17
constitution and central intrusion into the states‟ domains in the working of the
federation. In India part XXI provides for asymmetrical federalism and case of
Jammu &Kashmir is the best example. The other issues are like big like UP and
small states like Goa and their representation in the federal chamber of the union
legislature

1.9 Cooperative Federalism

When both union and states governments work in cooptation with each
other and not in isolation or in confronted manner to achieve certain common end
and also which are regarded as mutually complementary parts of a single
governmental mechanism. It helps system to work with divisional jurisdiction to
act in unison to avoid friction42 In India the cooperative practice is being followed
both as per constitutional mandate and at extra-constitutional forum e.g. mutual
delegation of functions and now the institutions of interstate council(ISC),NITI
Aayog, conferences of Chief Ministers and Governors of the states in India etc.

o Judicial Federalism It is the ability of the supreme court by its power of

judicial review to influence the type of federalism during certain era, as
power is vested in order to decide whether particular action/law of the
government is within its competency or not as supreme court has done after
commencement of the constitution in India and judicial view is cited above
in support of this ascertain .

o Fiscal federalism: It provides for as to how the financial resources are to

be distributed, their collection and utilization by the government for the
welfare of their citizens. Further in case of regional imbalance and the
devolution of funds from union government with an aim to bring
equalization among different federal units e.g. part XII of the Indian
constitution deals with fiscal federalism in India

42
M.P. Jain: Constitutional law of India ( Nagpur, Wadhwa publications, ed.6th 2006) p. 731
18
1.10 Federalism and its working in India: An Appraisal

As discussed above, that in federal setup the dual polity exists to work
within their exclusive dominion as provided in our constitution. Actually after
1950 congress party remained in power almost both in centre and states, hence
there was no need to assert their rights interse. It was in the case of state of West
Bengal in 1962 when supreme court opined that states has no sovereign power
hence union can take certain property of the states.

However, the year of 1967 somewhat proved to be a turning point in the

march of Indian federation when the centre-state relations were put to a test43 when
the general elections were followed by the formation of non-congress governments
in a number of States like Bihar, Haryana, Kerala, Madhya Pradesh, Orissa, Tamil
Nadu (Madras),Uttar Pradesh and West Bengal. Simultaneously, it was also the
beginning of a period when coalition politics started at the State level in India and
as such coalition Governments were formed in the states of Bihar, Haryana,
Kerala, Madhya Pradesh, Orissa, Uttar Pradesh and West Bengal.

In this backdrop Dr. S. Radhakrishnan the president of India while

addressing the joint session of parliament observed:

“For the first time since Independence, governments of political

complexions different from that of the government at the Centre
have been formed in several States. In a federal democratic polity,
this is to be expected. Our Constitution has provisions defining and
regulating the relationship between the Union and the States and
their mutual obligations. Further, over the years we have developed
certain institutions for promoting cooperation, understanding and
harmonious relations between the union and states, between one
State and another. The National developmental Council, the Zonal
Councils and the periodic Conferences of the Governors and Chief
Ministers are conspicuous examples of this nature. The Union
Government will respect the constitutional provisions in letter and
spirit without any discrimination and endeavour to strengthen the

43
See the constitution of P.V. Rajamamar committee (1969) by state of Tamil Nadu (Madras), West
Bengal Memorandum (1977) and Anandpur Sahib Resolution. There after the constitution of First
centre-state commission(1983) ,NCRWC(2002) and M.M. Punchhi Commission(2007) on union –
state commission
19
 arrangements for a co-operative approach to national problems.
We are sure that all the States will extend their cooperation in
serving these institutions and making their deliberations
increasingly fruitful and beneficial both to the Union and to
themselves. Strengthening the unity of country, safeguarding
security, preserving democratic institutions, and promoting
economic development and the well-being and happiness of our
people are the common objectives towards which the Union and the
States must strive together44”.
Although many political historians, including R.C.S. Sarkar in his book
“union-state relations in India45”, have observed that over centralization of powers
in the hands of union government was one of the major reasons that resulted in the
ouster of the congress party in 1977 general elections both at the centre as well as
in many States.

Earlier in 1969, the administrative reforms commission (ARC), constituted

by government of India in its report had focused on the certain steps to be taken for
maintaining harmonious centre-state relations46. At this Arun Chandra Guha was of
the opinion that we require a strong Centre but not at the cost of weak state and this
assertion is further substantiated by the report of commission that many of the
problems are due to the tendency of centralisation and misuse of authority47,
especially under article 356 prior to 1994 and even after this can also be seen like
in state of Bihar, UP and recently the episode of Uttarakhand and Arunachal
Pradesh.

However the era of coalition politics and economic reforms since 1990s
provided a new complexion to Indian federalism. Now various issues of national or
international perspectives are supposed to be handled with care by union
government taking into consideration the regional government which was not there
prior to the coalition era. The issue of Srilanka asserted by Tamil Nadu
government, Teesta river bilateral treaty with Bangladesh challenged by the state
of West Bengal in both cases they exerted pressure on union government even
44
President‟s addressed to joint parliament session on March 18th,1967
45
R.C.S. Sarkar, former law secretary, government of India and former chairman of the UPSC
46
Report of the Administrative Reform Commission,1969
47
National Commission to Review the Working of the Indian Constitution,2002
20
though the matters fall in the exclusive domain of the union government in the
federal set up48.There are various other issues where state governments claims their
jurisdiction against the union government e.g. the issue of national counter
terrorism centre(NCTC),foreign direct investment (FDI)49, and various laws so
enacted50 by union parliament to counter terrorism in the country on account of
subject „law and order‟ which falls in the state list, not only this but Punjab chief
minister even went on to say that tie has come to relook on the federal framework
in India51

In the light of the above, it is therefore summed up that „federalism‟ is one

of the basic structure features of the Indian constitution whereas term federalism is
derived from Latin word „Foedus‟ which means an agreement or covenant between
sovereign independent units for the governances of the territory keeping intact their
identity by way of constitutional provisions. The division of powers between
national and federal units to provide them exclusive jurisdiction with respect to
legislative, administrative and financial sphere52wherein both governments are
independent and coordinate to each other rather subordinate to each other. The
constitutional frame work is uniform for all federal units (states) in India except
with few exceptions53.The constitution itself provides for those exceptional cases
that how to deal with keeping in view the prevailing circumstances. The federalism
is a structure as well as a process which goes on changing with the passage of time
resulting in transfer of certain statutory powers and responsibilities between the
union and state governments, which is clear from the analysis of various
constitutional amendments effected by the parliament since 1950 to deal the
emerging needs of the society.

48
Surindera Singh and Satish Misra: “Federalism in India: Time for Relook”, ORF issue Brief July
(2012) p.8
49
Amar Ujalla dated 17-9-12 ,Prior approval of the state government a condition precedent for
foreign direct investment(FDI)
50
Amendment to Railways Police Force Act,1957 and other one is amendment to Border Security
Act,1968 to extend their policing power up to 8 KMs beyond the border
51
The Tribune dated March 28th, 2012
52
Op.cit.Ref.13
53
Part XXI (Articles369,370,371,371-A to 371-J) Temporary ,Transitional and Special Provisions
21
 In this regard the case of Jammu And Kashmir State is one of those
constitutional exceptions which is covered by article 370 which was incorporated
as temporary provision with respect to the state after considering the prevailing
conditions at that time to regulate federal relations with union of India. The wide
implications of said provisions like special status to the state of J&K in the Indian
federation which in political terminology is known as state autonomy in terms of
more powers than other states in India because union parliament has limited
legislative power on this state and all entries of the union and concurrent list are
not applicable here whereas some constitutional provisions were extended by
constitution order, that too with certain exceptions and modifications.

Hence, whatever changes at present have been incorporated by parliament

of India in the constitution of India through various constitutional amendments
with respect to the federalism and their effects on exclusive dominion of the
respective governments and whether all such amendments are applicable in the
state of J&K or not, with legal implications if any due to application or non-
application of those provisions on the special status of the J&K state is the main
focus of the present research work

The present research work is based on the doctrinal research method due to
the peculiar nature of the research topic opted for research, wherein researcher is
required to take some legal prepositions as a starting point to further focuses on
research, in this endeavour topic so selected is “The special status of the Jammu
and Kashmir in the Indian Federation: An Analytical Study” and for the
completion of the same, researcher has to relied on both primary and secondary
sources of information to analyse the federal relations between state of J&K and
union of India.

Objectives: Main objectives for the present research work are as under

 To determine and analyse the reasons for providing special status to J&K
state including present scenario

 To access the extent of federal supremacy enjoyed by the state of J&K

22
  To analyse the mechanism for implementation of federal laws in the state

 To analyse the legislative power of the J&K state with Indian federation

 To access the financial position of the state under fiscal federalism in India

 To enquire about the administrative direction with respect to the state of

J&K

So far as primary sources are concerned, these are like constituent assembly
debates both from India and J&K state, constitutional provisions including state‟s
constitution, reports of the various commissions and committees especially on
federalism, or relevant to the issues of J&K state, central enactments as well as
state legislative enactments and judgments of Supreme Court and High Courts
whereas the secondary sources are like standard law books, articles published in
law journals, newspapers and internet for on line journal etc.

Actually it is very difficult for a researcher to conduct the research without

hypothesis which is defined as a specific statement of prediction. The following
hypotheses are framed for the present research work

 That the constitution of India is federal in nature which provides for the
division of powers between union and states government

 That Part XXI of the Indian Constitution provides for special status to the
state of J&K

 That the principle of federal supremacy incorporated under article 246 and
254 prevails over the state‟s power in India

 That article 370 acts as tunnel to regulate union state relations in the Indian
federation

 That state of J&K depends on union government for financial assistance in

spite of having wide taxation power

 That the parliament has limited legislative powers in the state of J&K.
23
 Accordingly a brief overview of the research work is given as under54

In chapter -I i.e. Introduction a brief introduction of the legal status

accorded to state of J&K in the Indian federation especially in terms of special
powers of the state and also how this status secured by the constitutional provisions
has been discussed herein along with the statement of problem which led to the
research work , based on the federal evolution since 1950 either by constitutional
amendments or by the judicial interpretation including the concept of federalism as
practiced in India with reference to the constitutional provisions along with various
comments of jurists on the nature of the India federation. The salient features and
kinds of the federalism has also been highlighted with respect to the working of
Indian federation with a changed scenario especially after 1990

The next chapter “The state of Jammu and Kashmir: Historical

Perspective” is devoted to highlight important events especially with the execution
of treaty of Amritsar (1846) when the state of J&K came into existence as an
independent entity under the rule of Maharaja Gulab Singh with a view to cover
those legal and political developments that took place in the Dogra state covering
major incident of 1931 which led to the ruler of state i.e. Maharaja Hari Singh to
appoint a committee to look into the various grievances of different communities
of the states. The concept of state subject law by Ruler with factor responsible for
such laws in the state is also given in brief. The political march of the national
conference leading political party in the state and promulgation of the J&K
constitution Act, 1934, the accession of the state with union of India and invasion
by Pakistan supported tribal and thereafter the role of UN with respect to the issue
of J&K after formal complaint lodged by government of India as well as the
present status of UN on the issue has been discussed also. The application of the
first constitution order and role of J&K Constituent assembly to frame the
constitution for state and on the accession with union of India, the evolution of
article 370 in constitution of India is covered under the ensuing chapter.

54
The whole work is divided into seven chapters
24
 The chapter-III i.e. “Article 370 of Indian Constitution: A Genesis” in
this chapter main focus is on the implications of article 370 on the union-state
relations. The logic for its incorporation in the constitution of India, the contextual
analysis of the provisions incorporated along with judicial view, its effects on the
fundamental rights of the permanent residents of state especially with respect to
right to equality to high light gender justice vis-a vis law of state subject in view of
the full bench judgment of J&K court. The issue of reservation both political as
well as non-political is also discussed with relevant provisions applicable in the
state and case law laid down by the apex court of the country. The federal
institutions and their jurisdiction over the state of J&K is critically analysed too

The legislative relations with union of India is next chapter i.e. “Legislative
relations with special reference to the state of Jammu and Kashmir ” wherein
researcher has tried to analyse the historical background of the legislative history
in India. The division of legislative powers in other federal constitution like USA,
Canada and Australia is also highlighted here in this chapter. The constitutional
provisions and their application in the state of J&K with main focus on entries wise
applications in the state with reference to constitutional order issued by president
under article 370 to extend various constitutional. The present position of the
constitutional provision as made applicable to the state of J&K with comparative
analysis between union and state legislative enactment has been made to highlight
the wide legislative powers of the state in the Indian federation. The legislative
entries and their judicial interpretation especially on the residuary power with
relevant cases have also been referred in the chapter

In Chapter V i.e. “Contours of Administrative Relations in India: via-a-

via state of Jammu and Kashmir ” wherein the main focus is upon executive
functions and their execution in Indian federal setup along with the pattern of
administration followed in other federal set up of the world. The rationale of co-
operative federalism and its incorporation in the Indian constitution with latest
development in the country, in this direction in terms of various institutional
arrangements has been discussed herein. The administrative obligations and

25
constitutional provisions with special reference to the state of J&K has also been
given here for analysing and the rule of federal supremacy and its effect on the
state is given to highlight the special status of the state. The union power to
overtake state executive power with special reference to the state in the current
scenario is also discussed here. The extent of the state‟s executive power as per the
provisions of J&K constitution vis-à-vis position under Indian constitution has
been also pointed out in the ensuing chapter.

In next Chapter VI i.e. “Fiscal federalism in India: A Case of Jammu

and Kashmir State” deals with the concept of fiscal federalism and its
constitutional position as well as its historical development in India, further the
concept of fiscal decentralization, its statutory evolution and present constitutional
position has been discussed. The financial relations in India with special references
to the state of J&K and the distribution of revenue resources in the light of
financial commission recommendations along with finance transfer by union to
states governments like grant in aid, the constitutional provisions as applicable to
the state of J&K is given along with state‟s own constitutional provisions on
financial matters is highlighted here. The role of financial commission, NITI
Aayog and the rationale of the various central sponsored schemes in the current
scenario given in the context of XIV Finance Commission recommendations have
also been explored in this chapter.

So far as the Chapter VII is concerned, it deals with conclusion and

suggestions in terms of final conclusion so drawn from the analysis of the special
status of the J&K state in the Indian federation along with certain suggestions
made by the researcher based on present study have been highlighted. As the state
of J&K is an integral part of Indian union which enjoys special status in the Indian
constitution in terms of legislative, financial and administrative power as per the
constitutional position which exists today.

26