NOTES

JANUARY 25, 2014 vol xlIX no 4 EPW Economic & Political Weekly
68
Jammu and Kashmir
A Confederate within a Federal System
Irfan Rasool
Irfan Rasool (iffyrasool@gmail.com) is at the
Faculty of Law, ICFAI Foundation for Higher
Education, Hyderabad.
A constitution is the legally
permitted matrix for exercise of
power and access to power. The
Constitution of India is a federal
constitution that establishes a
dual polity, which consists of the
union at the centre and the states
at the periphery, each endowed
with sovereign powers assigned to
them by the Constitution. Jammu
and Kashmir, however, stands
out as the only state in the Indian
union that is not governed by the
general scheme of distribution
of powers. A special departure
was made, dening what
powers ought to belong to which
government, which perhaps leans
towards a more confederal than
federal arrangement.
T
he Government of India Act 1935
attempted to devise a constitu-
tional framework for the future
India (comprising both Indian states and
British India) on a federal structure. It
was, however, optional for Indian states
to enter into a federation. On the other
hand, the authority exercised by the fed-
eral government over Indian states ex-
tended to such matters as would be ceded
by them on entering into a federation.
The mechanism for acceding to either
dominion was provided under the Act.
Section 6 of the Act provided for acces-
sion to an Indian state. Since Section 6
fell under Part II of the Act, it was not
enforceable, for the Act had only partly
come into force in 1937. So the accession
of Indian states to the federation under
the Act of 1935 never existed, legally. But
the Act was the only constitution in ex-
istence. The solution to the problem was
provided in the Indian Independence
Act, 1947 of the British parliament. It
had the effect of setting up the erstwhile
British territory in India as an independ-
ent sovereign state and of freeing the
former princely states of India from the
suzerainty of Britain. The princely states
became independent sovereign states in
the meaning of international law. The
Indian Independence Act, 1947 con-
tained a provision in terms of which the
freed princely states could join either
India or Pakistan and consequently enter
into a federation.
Jammu and Kashmir stands out as the
only state in the Indian union that is not
governed by the general scheme of dis-
tribution of powers. A special departure
was reached, dening what powers ought
to belong to which government. The
arrangement was arrived in light of that
the Indian Constitution does not apply
proprio vigore (by its own force) to Jammu
and Kashmir. This article seeks to
a nalyse whether such an association
e xhibits some of the typical, if not
all, features of a confederal structure
of government.
Federalism
Federalism may mean all things to all
people (Davis 1978: 216). The principle
of federalism, like the separation of
powers, is not found in so many words in
textbooks, but is an essential part of con-
stitutional structures (Rossum 1985: 13).
Federalism is the theory by which powers,
the legislative, the executive, and the
judicial, are divided between the federal
state and the member states (Freeman
1863: 3).
1
This division of power is typi-
cally entrenched in the federal constitu-
tion, which neither the federal state nor
the member states can alter unilaterally.
When the Constituent Assembly met
as a sovereign body in August 1947 for
drafting the constitution for a free India,
which was nally adopted on 26 Novem-
ber 1949 and came into force from 26
January 1950, it had before it, as options,
the unitary and federal models. That the
framers of the Constitution were inu-
enced by the federal principles, with
exceptions and modications of the US
constitution cannot be denied (Austin
1974: 187).
2
It is a federal constitution in
as much as it establishes what may be
called a dual polity, which consists of the
union at the centre and the states at the
periphery, each endowed with sovereign
powers to be exercised in the eld
assigned to them by the Constitution.
Yet the Constitution avoided the tight
mould of federalism in which the US
constitution was caught, and could be
both unitary as well federal according to
the requirements of time and circum-
stances. Dictated by savoir fare and
i ngenuity, the Constitution makers made
a departure from the theory and practice of
a typical federal system, lest ssiparous
forces succeed in cocking a snook at it.
Federation and Princely States
With the passing of the Indian Inde-
pendence Act, the two new dominions of
India and Pakistan were created, and in
the absence of any new constitution,
NOTES
Economic & Political Weekly EPW JANUARY 25, 2014 vol xlIX no 4
69
were to be governed by the provisions of
the Government of India Act, 1935 under
Section 8(2), except insofar as the provi-
sions made by the Constituent Assembly
under Section 8(1) of the Act of 1947.
3

And any such provision made by the
Constituent Assembly by order of the
governor-general was to be made appli-
cable to that new dominion. Accordingly,
by virtue of the powers conferred by
Section 8 and Section 9(1)(c)

of the Act of
1947, the governor-general promulgated
the India (Provisional Constitutional)
Order of 1947.
4
Under this Constitutional
Order of 1947 issued on 15 August 1947,
Section 6 of the Government of India
Act, 1935 was substituted by Section 6 of
the Indian (Provisional Constitutional)
Order 1947, which provided for the
accession of the princely states.
5
Indian Federalism and Kashmir
The constitutional relationship of Kash-
mir with India was thus established on
federal principles, if at all, with the exe-
cution of an instrument of accession and
there was an unambiguous division of
powers between the state of Jammu and
Kashmir and the centre (Alexandrowicz
1957: 154).
6
The arrangement reinforced
in Article 370 of the Indian Constitution
was a provision of that solemn agree-
ment (Anand 2006: 96). When the state
of Jammu and Kashmir sent its repre-
sentatives in June 1949 to the Constituent
Assembly of India, they agreed to make
an association with the Government of
India only on the terms of accession.
These conditions were agreed (Anand:
2006).
7
On these principles, Article 370 of
the Constitution of India (Article 306A in
the draft constitution) was adopted,
which dealt with the constitutional rela-
tionship between the state and the
d ominion of India. It came into force in
1950. By virtue of the powers conferred
by Article 370, the Constitution (Appli-
cation to Jammu and Kashmir) Order
1950 extending Article 370 to the state of
Jammu and Kashmir was declared by
the president (Sharma 1995: 176).
8

The scheme of the constitutional rela-
tionship, the division of powers, bet ween
the state and the centre was reached
with an agreement at Delhi in 1952. The
Delhi Agreement determined the subject
matters other than those already ex-
tended by the Constitution Order of
1950, and were extended to the state.
This Agreement was given a legal effect
in 1954, when the president of India
passed the Constitution (Application to
Jammu and Kashmir) Order, 1954 by vir-
tue of the powers vested in him under
Article 370 of the Constitution. By this
constitution order, the jurisdiction of the
union was extended from the original
subject matters acceded under the in-
strument of accession to all subjects of
the union list, subject to some modica-
tions and exceptions.
9
The order sought
to implement the Delhi Agreement
(Noorani 2000).
10

The Constitution establishes a dual
polity, a system of double government
with the union government at the centre
and the state government at the state
level (Pal 1984: 24). Each of the govern-
ments is supreme in its sphere (Loewen-
stein 1965: 18-19).
11
It has established in-
stitutional devices by which several
power holders are limited and control-
led.
12
Under Part XI of the Constitution,
relations between the union and the
states have two dimensions. Part I deals
with the legislative relations and Part II
deals with the executive relations.
Legislative Relations
The seventh schedule of the Constitu-
tion contains three lists of jurisdiction.
The union list enumerates 97 matters of
exclusive federal jurisdiction. The legis-
lative competence of the union extends,
subject to the provisions of the Constitu-
tion, to making laws for the whole of
I ndia or any part thereof.
13
The legis-
lature is mainly a policymaking body. It
can make policy on all matters specied
in the union list and concurrent list.
It cannot make laws on the state list,
e xcept under certain specied circum-
stances enumerated by the Constitution.
Article 246 deals with the subject mat-
ters on which the union has policy-
making powers.
14
However, its appli cation
to the state of Jammu and Kashmir
e xtends to matters enumerated in the
union list, with modications and
e xceptions.
15
A comparative study of the matters
enumerated in the seventh schedule of
the union list with the Constitution
(Application to Jammu and Kashmir)
Order, 1954 and subsequent constitution
orders made under Article 370, reveals
that though the union legislature has
been empowered to legislate on almost
all matters under List I, such legislative
jurisdiction is not without restrictions
and modications (Teng 1990).
16
The
provisions of the state list of the Consti-
tution are not applicable to the state of
Jammu and Kashmir.
17
Concurrent List
The concurrent list, enumerated in the
seventh schedule of the Constitution,
contains 47 matters on which both the
union and the states have legislative
jurisdiction.
18
In the case of a conict
bet ween centre and state law over the
concurrent list, the central law, with its
own exceptions, prevails. It is pertinent
to mention that the concurrent list was
made applicable, with exceptions and
modications, to the state of Jammu and
Kashmir only in 1963 in exercise of the
powers conferred by Article 370 of the
Constitution. The president, with the
concurrence of the government of the
state on 25 September 1963, issued the
Constitution (Application to Jammu and
Kashmir) Order 1963, extending, among
other provisions, the provisions in a
modied form of the concurrent list to
the state of Jammu and Kashmir. The
subsequent Constitution (Application to
Jammu and Kashmir) Order 1964, dated
16 March 1964 and 2 October 1964, ex-
tended provisions, with modications
and exceptions, of the concurrent list
of the seventh schedule to the state of
Jammu and Kashmir.
Residual Powers
The union and the states are empowered
to legislate on the matters specied in
List I, List II and List III of the Constitu-
tion. There are, however, matters which
may fall under none of the lists of the
Constitution. It has devised a method by
which the residue, the subjects not men-
tioned in any of the lists, belong to the
union exclusively. This power is called
the residuary power of the union.
19

E ntry 97 of the union list also lends sup-
port to the scheme.
NOTES
JANUARY 25, 2014 vol xlIX no 4 EPW Economic & Political Weekly
70
In relation to the state of Jammu and
Kashmir, the unions exclusive authority
to legislate over residuary matters has
no application to it. In other words,
while under the Indian Constitution the
residuary powers vest with the union
Parliament, in Jammu and Kashmir,
they vest with the state. One of the im-
plications of clause 8 of the instrument
of accession is that the residuary sover-
eignty of the state remains intact.
20

The scheme of the division of powers,
an essential feature of federalism, has
not been strictly followed in the case of
Jammu and Kashmir. The unions juris-
diction extends with exceptions and
modications, which are based on the
terms of the instrument of accession.
Treaties
The scope of treaties in the realm of
international law is one of immense
value (Shah 2003). The Constitution has
adopted a scheme empowering the un-
ion legislature to make laws for the pur-
pose of implementing treaty obligations
(Rao 1993: 132-34). Article 253, a non-
obstante (notwithstanding) clause, read
with Entry 13 and 14 of the union list of
the seventh schedule, vests powers to
make laws for India and implement trea-
ties with the union legislature. Article 253
had been, by virtue of the Constitution
(Application to Jammu and Kashmir)
Order, 1954, applied to the state of
Jammu and Kashmir with one overriding
proviso after the commencement of
the Constitution (Application to Jammu
and Kashmir) Order, 1954, no decision
affecting the disposition of the state of
Jammu and Kashmir shall be made by
the Government of India without the
consent of government of that state. It
would imply, legally, that no treaty can be
entered into, pertaining to the status of
Jammu and Kashmir, without the con-
sent of the state of Jammu and Kashmir.
Administrative Relations
A federal scheme involves the setting up
of a dual polity and division of powers,
legislative and executive, between the
federal state and the member states.
This division of powers is made in a way
that both the federal state and the mem-
ber states are ensured exclusive and
independent administrative authority
(Oppenheim and Lauterpacht 1970: 175).
21

There are two implications. First, the
states power to execute rules laid down
by legislators would, inevitably, involve
delegation of powers for the effective
implementation of policies. It thus raises
a question of overseeing the administra-
tive exercise of delegated powers. Sec-
ond, the federal state and the member
states have to act in close cooperation,
ultimately surrendering to the mandate
of the Constitution (Pal 1984: 24).
22
And
this is achieved by what is called co-
operative federalism (ibid: 213).
23
The
scheme adopted under Articles 256-63
addresses both implications.
With regard to the state of Jammu and
Kashmir, the constitutional provisions
on administrative relations are applica-
ble in a modied from. Article 256 of the
Indian Constitution is appended with a
new clause, which reads,
The State of Jammu and Kashmir shall so
exercise its powers as to facilitate the dis-
charge of the Union of its duties and respon-
sibilities under the Constitution in relation
to that State, and in particular, the said State
shall, if so required by the Union, acquire
or requisition property on behalf and at the
expenses of the Union, or if the property be-
longs to the State, transfer it to the Union on
such terms as may be agreed, or in default
of agreement, as may be determined by an
arbitrator appointed by the Chief Justice
of India.
Emergency
The Government of India Act, 1935,
which envisaged a federal administra-
tion for British India, provided a con-
venient basis for many of the provisions
of the Indian Constitution that were
adop ted by the Constituent Assembly in
1949. It considers three types of emer-
gencies, national (352), state (356), and
nancial (360).
Article 352 declares that if the presi-
dent is satised that a grave emergency
exists whereby the security of India or of
any part of its territory is threatened,
whether by war, external aggression, or
internal disturbance, he may, by pro cla-
mation, make a declaration to that effect.
24

Consequently the union legislature and
executive assume the power to legislate
on matters enumerated in the state list
and give directions to state executives,
respectively.
The emergency provisions in the Con-
stitution apply to Jammu and Kashmir
with modications. The presidents pow-
er to issue a proclamation under Article
352 in relation to Jammu and Kashmir is
limited. The Constitution (Application
to Jammu and Kashmir) Order 1954,
para 13 (a) added a new clause to Article
352 in its application to the state. Ac-
cordingly, a proclamation of emergency
made on grounds of internal distur-
bance can have effect in relation to Jam-
mu and Kashmir only after the concur-
rence of the government of the state is
sought or if a request is made by the gov-
ernment of the state that the proclama-
tion be extended to it.
Article 356 is inspired by Section 93 of
the Government of India Act, 1935,
which provided that if a governor of a
province was satised that a situation
has arisen in which the government of
the province cannot be carried on in
accordance with the provisions of the
act, he could, by proclamation, assume
for himself all or any of the powers vested
in or exercisable by a provisional body or
authority, including the ministry and
the legislature, and discharge those
functions at his discretion. The only ex-
ception is that under this section the
governor cannot encroach on the pow-
ers of the high court.
25
The provisions
were incorporated in the 1935 Act to
meet certain purposes and exigencies.
Article 356 envisages the suspension
of state autonomy and the imposition of
presidents rule if the constitutional ma-
chinery breaks down. It provides that if
the president is satised on receipt of a
report from the governor or otherwise
that a situation has arisen in which the
governance of a state cannot be carried
on in accordance with the provisions of
the Constitution, he is empowered to
proclaim an emergency.
26
As a result,
(i) he may assume for himself all or any
of the functions of the state or he may
vest all or any of those functions in the
governor or any other executive autho-
rity; (ii) he may declare that the powers
of the state legislature shall be exercisa-
ble by Parliament; and (iii) he may make
any other incidental or consequential
NOTES
Economic & Political Weekly EPW JANUARY 25, 2014 vol xlIX no 4
71
provisions necessary to give effect to the
objects of the proclamation. The presi-
dent, however, cannot assume for him-
self any of the powers in a high court.
27
The provision of the Constitution on an
emergency arising out of constitutional
breakdown in the states is applicable to
Jammu and Kashmir without any excep-
tion or reservation.
28
The provision has
a high signicance in its applicability to
the state and it would draw into focus
Article 256.
29
Article 360 is not applica-
ble to the state of Jammu and Kashmir.
Amendment
To be able to adopt itself to the changing
needs of the society, due space was given
in Article 368 to adjust constitutional
governance to preserve the mandate
and spirit of the Constitution. The Con-
stitution empowers the legislature, by
virtue of Article 368, to meet future
challenges, subject to its provisions.
Thus Article 368 empowers Parliament
to amend the Constitution. An amend-
ment under the said article, in addition
to a special majority, requires ratica-
tion, in certain cases, by not less than
half the state legislatures.
Article 368 has been made applicable
to Jammu and Kashmir with a specic
exception. The proviso appended to
Article 368 by Constitution (Application
to Jammu and Kashmir) Order, 1954 makes
any amendment to the Constitution of
India inapplicable to Jammu and Kash-
mir, unless applied by an order under
Article 370 of the Constitution. It pro-
vides that even if the procedure laid
down under Article 368 to amend the
Constitution has been followed, the
amended provision shall not extend to
the state unless extended by the presi-
dent under Article 370 with the concur-
rence of the government of the state.
Legally speaking, the legislative power
of the union to amend the Constitution
is restricted by Article 370. The provi-
sion acts as a controlling device.
Financial Relations
The nancial relationship between the
union and the states are chiey modelled
on the pattern of the Government of
India Act, 1935. Financial relations mean
the strength of the sources of revenue at
the disposal of the union and the states.
The Constitution provides that some
taxes will be levied by the union, but col-
lected by the states. Some other taxes
will be levied and also collected by the
union but made over to the states. In ad-
dition to this, the union will give some
grants-in-aid to states for specic pur-
poses. Of course, there are some taxes
which are exclusively under the jurisdic-
tion of the union, and certain others under
the exclusive jurisdiction of the states.
The nancial relationship between
the state of Jammu and Kashmir and the
union is based on the same pattern. The
division of taxing powers and nancial
recourses, as contemplated by the Con-
stitution, between the union and the
state of Jammu and Kashmir and the
provisions with regard to levy and col-
lection of taxes are applicable to the
state, except that the union has no juris-
diction to levy and collect tax according
to Entry 97 of the union list, which vests
residuary powers with the union.
30
The
revenue of the states from their own re-
sources may not always sufce for ex-
penditures. This state scal insufcien-
cy was foreseen at the time of drafting
the Constitution and a mechanism in the
shape of the nancial commission, un-
der Article 280, was provided to settle
nancial adjustments among the states.
The nancial commission is only one
stream of transfer of resources from the
union to the states.
31
These provisions
are also applicable to the state of Jammu
and Kashmir (Teng 1975: 165).
32
The
Constitution (Application to Jammu and
Kashmir) Order, 1958 has extended the
jurisdiction of the Comptroller and
Auditor General to Jammu and Kashmir
(Anand 2006: 162).
33
Federal Jurisdiction
The framers of the Indian Constitution
sought to balance and prevent concen-
tration of power in the states and
devised a hierarchical judicial system,
with the Supreme Court as the highest
court and all state courts subordinate to
it.
34
In the conguration of the power
process, the judiciary occupies a unique
position. The role of the judiciary in the
Constitution is that of a policy controller.
One of the most signicant phenomena
in the evolution of the constitutional
democratic state is the rise of the judiciary
to the position of a genuine third power.
In India, judicial power is the basic struc-
ture of the Constitution and is protected
even from constitutional amendment.
Part V Chapter IV of the Constitution
constituted a unitary deviation from the
federal structure related to the parallel
and independent administration of jus-
tice. It, in effect, introduced the hierar-
chy of the administration of justice.
Read in the context of Articles 132-36
and, in particular, Article 141 of the Con-
stitution, the Supreme Court exercises
original, appellate and advisory jurisdic-
tions. The application of original juris-
diction of the Supreme Court has been
made applicable to the state of Jammu
and Kashmir.
The appellate jurisdiction of the Su-
preme Court covers three types of
cases (i) constitutional; (ii) civil; and
(iii) criminal. It extends to Jammu and
Kashmir with the exception of criminal
cases. As far as Jammu and Kashmir is
concerned, the unions jurisdiction to
confer more powers on the Supreme
Court to entertain or hear appeals in
criminal cases does not extend to it un-
less a request is made by the legislature
of the state.
The Constitution has conferred the
Supreme Court with certain advisory
functions under Article 143. The adviso-
ry jurisdiction of the Supreme Court has
been made applicable to Jammu and
Kashmir by the Constitutional Order of
1954 and the power of the Supreme
Court to grant special leave to appeal at
its discretion has been applied by the
Constitutional Order of 1960.
Conclusions
In federalism, if the federal state makes
a law within a jurisdiction delegated to it
by a constitution, it could directly bind
the citizens of the member states (Op-
penheim and Lauterpacht 1970:175).
This federalist feature does not hold
bet ween the state of Jammu and Kashmir
and India. In India, when the legislature
makes laws over subject matters dele-
gated to it under the Constitution, it
does not bind the citizens of Jammu and
Kashmir directly. Read in the context of
NOTES
JANUARY 25, 2014 vol xlIX no 4 EPW Economic & Political Weekly
72
Article 370, this peculiar feature of the
constitutional relationship replicates a
confederal one.
In a federation, the federal state is
competent to conclude treaties on the
behalf of the member states.
35
However,
the application of Article 253 is restricted
in the case of Jammu and Kashmir (Op-
penheim and Lauterpacht 1970: 180).
36

In any event, by virtue of the conditions
to Article 253 applicable to the state of
Jammu and Kashmir, any treaty con-
cluded by India would not be binding on
it. This resembles a confederate feature.
In India, Parliament, unlike in the
US or Australia, can in the national inter-
est override all powers unilaterally. In
the case of Jammu and Kashmir, how-
ever, this is again limited. Jammu and
Kashmir has not only retained residual
sovereignty, but also limited the jurisdic-
tion of the union even over matters
d elegated to it. It has remained a half-
sovereign state. It is pertinent to mention
that half-sovereign states, according to
Oppenheim and Lauterpacht (1970), are
international persons to a degree.
37
Jammu and Kashmir stands out as the
only state in the Indian union that is not
governed by the general scheme of dis-
tribution of powers. A special departure
was reached, dening what powers
ought to belong to which government.
The arrangement was arrived in light of
that the Indian Constitution does not
apply by its own force to Jammu and
Kashmir but by virtue of the instrument
of accession and is subject to its terms
and conditions. It is for these reasons
that the existence and development of
the state of Jammu and Kashmir has,
since 1947, been signicant and edifying
as a matter of constitutional and inter-
national law. Any such association is
bound to exhibit some of the typical, if
not all, features of a confederal struc-
ture of government.
Notes

1 See for a detailed enquiry, see Freeman (1863).
On the one hand, each of the members of the
union must be wholly independent in matters
that concern them only. On the other hand, all
must be subject to a common power in matters
that concern the whole body of members. See
also Wheare (1967), where federal principles
mean the method of dividing powers so that
the general and regional governments are each
within a sphere, coordinate, and independent.
See also Dicey (2013), where federalism means
the distribution of the force of the state among
members of coordinate bodies each originating
in and controlled by the Constitution. See also
Brich (1970), where a federal system of govern-
ment is one in which there is a division of pow-
ers between one general and several regional
authorities, each of which, in its own sphere, is
coordinate with the others, and each of which
acts directly on the people through its own ad-
ministrative agencies.
2 See Austin (1974). It may be also noted here
that the Union Constitution Committee met
on June 6, 1947 to consider whether the Consti-
tution would be a unitary or a federal one
This imposing list of starred dignitaries decid-
ed at that time that the Constitution should
have a federal structure with a strong centre.
See also Jennings (1953).
3 Section 8(1), Indian Independence Act, 1947
reads,
In the case of each of the new Dominions, the
powers temporary of the Legislature of the
Dominion shall, for the purpose of provision
as making provision as to the Constitution of
the Dominion, be exercisable in the rst in-
stance by the Constituent Assembly of that
Dominion, and references in this Act to the
Legislature Dominions shall be construed
accordingly.
(2) Except in so far as other provision is
made by or in accordance with a law made by
the Constituent Assembly of the Dominion
under subsection (i) of this section, each of
the new Dominions and all Provinces and
other parts thereof shall be governed as near-
ly as may be in accordance with the Govern-
ment of India Act, 1935.
4 Section 9(1)(c) Indian Independence Act, 1947
reads,
The Governor-General shall by order make
such provision as appears to him to be neces-
sary or expedient -
for making omissions from, additions to, and
adaptations and modications of, the Gov-
ernment of India Act, 1935, and the Orders in
Council, rules and other instruments made
thereunder, in their application to the sepa-
rate new Dominions
5 Section 6 of the Government of India Act, 1935
was substituted by Section 6 of the India (Provi-
sional Constitution) Order, 1947, which was as
follows.
Accession to the Indian States: (1) An Indian
State shall be deemed to have acceded to the
Dominion if the Governor General has signi-
ed his acceptance of an Instrument of Acces-
sion executed by the Ruler thereof whereby
the Ruler on the behalf of the State:-
a) Declares that he accedes to the Domin-
ion with the intent that the Governor-Gen-
eral, the Dominion Legislature, the Federal
Court and any other Dominion authority
established for the purposes of the Domin-
ion shall, by virtue of his Instrument of
Accession, by subject always to the terms
thereof, and for the purposes of only of the
Dominion, exercise in relation to the State
such functions as may be vested in them by
order under this Act; and
b) Assumes the obligation of ensuring that
due effect is given within the State to the
provisions of this Act as far as they are ap-
plicable therein by virtue of the Instrument
of Accession.
(2) An Instrument of Accession shall specify
the matters which the Ruler accepts as mat-
ters with respect to which the Dominion Leg-
islature may make laws for the State, and the
limitations, if any, to which the power of the
Dominion Legislature to make the laws for
the State, and the exercise of the executive
authority of the Dominion in the State, are
respectively to be subject.
(3) A Ruler may, by a supplementary Instru-
ment executed by him and accepted by the
Governor-General, vary the Instrument of
Accession of his State by extending the func-
tions which by virtue of that Instrument are
exercisable by any Dominion authority in re-
lation to his state.
(4) References in this Act to the Ruler of the
State include references to any person for the
time being exercising the powers of the Ruler
of the State, whether by reason of the Rulers
minority or for any other reason.
(5) In this Act a State which has acceded to
the Dominion is referred to as an Acceding
State and the Instrument by virtue of which a
State has so acceded construed together with
any supplementary Instrument executed un-
der this Section, is referred to as the Instru-
ment of Accession of that State.
(6) As soon as may be after any Instrument of
Accession or supplementary Instrument has
been accepted by the Governor-General un-
der this section, copies of the Instrument and
the Governor-Generals acceptance thereof
shall be laid before the Dominion Legislature
and all courts shall take judicial notice of
every such Instrument and acceptance.
6 See also Abdullah (nd), p 15.
7 Constituent Assembly Debate, Vol X, pp 422-25.
8 According to the presidents order of 26 Janu-
ary 1950, Parliament could make laws applica-
ble to Jammu and Kashmir only on matters
specied in 39 entries out of 97 in the union
list. Some of these 39 entries had to be further
modied so that they corresponded to matters
specied in the instrument of accession of
the state.
9 According to the Order (of 1954), 98 more arti-
cles of the Constitution of India were extended
to Kashmir state. See also Anand (2006: 122).
This Order (of 1954) superseded the Constitu-
tion (Application to Jammu and Kashmir)
O rder, 1950 and precisely dened the scope
and extent of the limitations on the states sov-
ereignty, consequent to its accession to India.
10 The report makes two valid points. Why the
haste since the states constitution was yet to be
framed? Besides, the order in some respects
went beyond the Delhi Agreement. It certainly
paved the way for more such Orders all with
the concurrence of the State Government,
each elected in manipulated polls. Ninety-four
of the 97 Entries in the union list and 26 of the
47 in the concurrent list were extended to
Kashmir as were 260 of the 395 Articles of the
Constitution. Worse, the states constitution
was overridden by the centres orders, altering
its basic structure. The head of state elected by
the state legislature was replaced by a governor
nominated by the centre. Article 356 (imposi-
tion of president's rule) was applied despite
provision in the states constitution for gover-
nors rule (Section 92). This was done on 21 No-
vember 1964. On 24 November 1966, the gov-
ernor replaced the Sadar-i-Riyasat after the
states constitution was amended on 10 April
1965 by the 6th Amendment, violating Section
147 of the Constitution. Section 147 was itself
immune to amendment. But it referred to the
Sadar-i-Riyasat and required his assent for con-
stitutional amendments. He was elected by the
assembly [Section 27 (2)]. To replace him by the
centres nominee was to alter the basic struc-
ture. See Noorani (2000).
11 To Loewenstein (1965), the concept is mislead-
ing (that shared power means a dual polity)
and even dangerous. Actually, the federal
organisation possesses only one, indivisible
sovereignty, that of the central state which ab-
sorbs, within the limits of the Constitution, the
NOTES
Economic & Political Weekly EPW JANUARY 25, 2014 vol xlIX no 4
73
original sovereignties of the member units.
Shared power in a federal organisation must
not be equated with a system of dual sovereignty.
12 Read in the context of Articles 14, 53, 256, 257
(1), 356 and 365 of the Constitution of India.
The control devices, according to Loewenstein
(1965:18-19) are called horizontal and vertical
controls.
13 Article 245 of the Constitution of India.
14 Article 246 of the Constitution of India.
15 For details, see Constitutional Order, 1954.
16 Item 8 of the union list which deals with the Cen-
tral Bureau of Investigation is not applicable to
Jammu and Kashmir; Parliament has no power to
legislate on preventive detention for reasons con-
nected with defence, foreign affairs or security in
relation to Jammu and Kashmir; item 33 of the
union list, now under the concurrent list, which
deals with the acquisition and requisition of the
property, is not applicable to Jammu and Kash-
mir; item 34 of the union list, which deals with
court of wards for the estates of the rulers of the
Indian states, does not apply to Jammu and Kash-
mir; items 52, 60, 67 and 81 of the union list is not
applicable to Jammu and Kashmir; and items 72,
78 and 79 are not applicable to Jammu and Kash-
mir. See Teng, M K (1990) and Teng, Krishan
Mohan (1975).
17 For details, see Constitutional Order, 1954.
18 Article 246(2) of the Constitution of India.
19 Article 248 of the Constitution of India.
20 The residuary sovereignty of the state was fully
safeguarded under Clauses 8 and 7 of the instru-
ment of accession.
21 For international law this division of compe-
tence is only of interest insofar as it concerns
competence in international matters.
22 Using the concept in the broader sense, M P
Jain has observed that the meaning of the con-
cept of cooperative federalism is the promotion
of cooperation and minimisation of friction be-
tween the various constituent governments of
the federal union whether it is centre vs state or
state vs state. The realisation that the promo-
tion of general public welfare is the common
goal of governments at the centre and in the
states and they should work in concert and not
in complete isolation to reach goals is the es-
sence of cooperative federalism.
23 Cooperative federalism has been nourished,
according to Pal (1984: 213) by three main fac-
tors: (a) the exigencies of war; (b) technologi-
cal advances making means of communication
faster; and (c) the emergence of the concept of
a social welfare state.
24 Article 352 of the Constitution of India.
25 Section 45 of the Government of India Act, 1935
conferred a similar power on the governor gen-
eral with respect to the central government/
central legislature. (The provisions of the Act
relating to the central government were not
brought in operation partly because of the
onset of second world war).
26 The powers conferred by Article 356 is a condi-
tional power, it is not an absolute power to be
exercised at the discretion of the president. The
condition is the satisfaction that a situation of
the type contemplated by the clause has arisen.
27 The power vested in and or exercisable by a
high court shall not be assumed by the presi-
dent nor can he suspend in whole or in part any
provision of the Constitution in relation to a
high court. Thus, while executive power is
structured and organised in a manner required
to ensure compliance with every existing law
applicable in the state, as Article 256 contem-
plates, the judicial control over administrative
action devised by the Constitution as necessary
for authoritative correction of the errors of ad-
ministration have been insulated from usurpa-
tion by the administration as a safeguard for
ensuring the rule of law.
28 For details, see Constitutional Order, 1954.
29 The power structure arranged in Articles 14, 53
(1), 256, 356(1) is such that the state has to work
suo motu to ensure compliance with every ap-
plicable law. The state is expected to play a pro-
active role in creating favourable conditions for
the individual pursuit of happiness. The duty
imposed on the state has a high signicance for
human rights. The provision can prove highly
useful if looked at in the way it is capable of
b eing used for a fundamental restructuring of
the governmental machinery and methods to
deliver the promises and protections of the law
quickly and effectively.
30 The reason, residuary power vests with the
state of Jammu and Kashmir.
31 The transfer of revenue and capital resources is
largely determined by the Finance Commission
and Planning Commission.
32 Jammu and Kashmir is covered by the constitu-
tional provisions pertaining to grants-in-aid
and the Second Finance Commission in its
i nterim report covered the nancial integra-
tion of the state.
33 After May 1954, the state entered into nancial
arrangements with the union government that
bring it on a par with other states on nancial
matters, including proportionate allocation of
funds from the centre. Jammu and Kashmir is
being allocated its due share of the nances
strictly in accordance with the principles that
apply to the other states and no distinction
exists.
34 At the top is the Supreme Court of India, a su-
pervisory court and it has appellate authority
over state courts in matters of all laws, federal
or state.
35 The declaration of war, peace, and sending and
receiving of diplomats is done by the federal
state and no member state is authorised to do
so, but this is true in a confederation as well.
36 In some federated states, such as Australia or
India, the Constitution seems to give some
powers to the federation to legislate on matters
covered by treaties concluded by the federation.
37 It is inaccurate to maintain that they (half-
sovereign states) can have no international
position whatsoever; Oppenheim and Lauter-
pacht (1970), pp 119-23, 175-78 and 190-94.
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