NOTES

Jammu and Kashmir

A Confederate within a Federal System
Irfan Rasool

analyse whether such an association exhibits 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 constitutional 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 typically entrenched in the federal constitution, 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 November 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 inuenced 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 circumstances. Dictated by savoir fare and ingenuity, 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 Independence Act, the two new dominions of India and Pakistan were created, and in the absence of any new constitution,
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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.

Irfan Rasool (iffyrasool@gmail.com) is at the Faculty of Law, ICFAI Foundation for Higher Education, Hyderabad.

he Government of India Act 1935 attempted to devise a constitutional 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 federal government over Indian states extended 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 accession 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 existence. 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 independent 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 contained 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 distribution 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

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were to be governed by the provisions of the Government of India Act, 1935 under Section 8(2), except insofar as the provisions 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 applicable 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 Kashmir with India was thus established on federal principles, if at all, with the execution 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 agreement (Anand 2006: 96). When the state of Jammu and Kashmir sent its representatives 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 relationship between the state and the dominion of India. It came into force in 1950. By virtue of the powers conferred by Article 370, the Constitution (Application 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 relationship, 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
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matters other than those already extended 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 virtue 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 instrument of accession to all subjects of the union list, subject to some modications 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 governments is supreme in its sphere (Loewenstein 1965: 18-19).11 It has established institutional devices by which several power holders are limited and controlled.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 Constitution contains three lists of jurisdiction. The union list enumerates 97 matters of exclusive federal jurisdiction. The legislative competence of the union extends, subject to the provisions of the Constitution, to making laws for the whole of India or any part thereof.13 The legislature 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, except under certain specied circumstances enumerated by the Constitution. Article 246 deals with the subject matters on which the union has policymaking powers.14 However, its application to the state of Jammu and Kashmir extends to matters enumerated in the union list, with modications and exceptions.15 A comparative study of the matters enumerated in the seventh schedule of
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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 Constitution 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, extended 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 Constitution. 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 mentioned in any of the lists, belong to the union exclusively. This power is called the residuary power of the union.19 Entry 97 of the union list also lends support to the scheme.
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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 implications of clause 8 of the instrument of accession is that the residuary sovereignty 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 jurisdiction 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 union legislature to make laws for the purpose of implementing treaty obligations (Rao 1993: 132-34). Article 253, a nonobstante (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 treaties 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 consent 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 member states are ensured exclusive and
70

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 administrative exercise of delegated powers. Second, 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 cooperative 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 applicable 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 discharge of the Union of its duties and responsibilities 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 belongs 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 administration for British India, provided a convenient basis for many of the provisions of the Indian Constitution that were adopted by the Constituent Assembly in 1949. It considers three types of emergencies, national (352), state (356), and nancial (360). Article 352 declares that if the president 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 proclamation, 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 Constitution apply to Jammu and Kashmir with modications. The presidents power 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. Accordingly, a proclamation of emergency made on grounds of internal disturbance can have effect in relation to Jammu and Kashmir only after the concurrence of the government of the state is sought or if a request is made by the government of the state that the proclamation 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 exception is that under this section the governor cannot encroach on the powers 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 machinery 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 authority; (ii) he may declare that the powers of the state legislature shall be exercisable by Parliament; and (iii) he may make any other incidental or consequential
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provisions necessary to give effect to the objects of the proclamation. The president, however, cannot assume for himself 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 exception 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 applicable 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 Constitution 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 amendment under the said article, in addition to a special majority, requires ratication, 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 Kashmir, unless applied by an order under Article 370 of the Constitution. It provides 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 president under Article 370 with the concurrence of the government of the state. Legally speaking, the legislative power of the union to amend the Constitution is restricted by Article 370. The provision 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
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the disposal of the union and the states. The Constitution provides that some taxes will be levied by the union, but collected by the states. Some other taxes will be levied and also collected by the union but made over to the states. In addition to this, the union will give some grants-in-aid to states for specic purposes. Of course, there are some taxes which are exclusively under the jurisdiction 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 Constitution, between the union and the state of Jammu and Kashmir and the provisions with regard to levy and collection of taxes are applicable to the state, except that the union has no jurisdiction 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 resources may not always sufce for expenditures. This state scal insufciency was foreseen at the time of drafting the Constitution and a mechanism in the shape of the nancial commission, under 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 concentration 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
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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 structure 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 justice. It, in effect, introduced the hierarchy of the administration of justice. Read in the context of Articles 132-36 and, in particular, Article 141 of the Constitution, the Supreme Court exercises original, appellate and advisory jurisdictions. The application of original jurisdiction of the Supreme Court has been made applicable to the state of Jammu and Kashmir. The appellate jurisdiction of the Supreme 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 unless 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 advisory 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 (Oppenheim and Lauterpacht 1970:175). This federalist feature does not hold between the state of Jammu and Kashmir and India. In India, when the legislature makes laws over subject matters delegated to it under the Constitution, it does not bind the citizens of Jammu and Kashmir directly. Read in the context of
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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 (Oppenheim 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 concluded 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 interest override all powers unilaterally. In the case of Jammu and Kashmir, however, this is again limited. Jammu and Kashmir has not only retained residual sovereignty, but also limited the jurisdiction of the union even over matters delegated to it. It has remained a halfsovereign 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 distribution 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 international law. Any such association is bound to exhibit some of the typical, if not all, features of a confederal structure 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 government is one in which there is a division of powers 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 administrative agencies. See Austin (1974). It may be also noted here that the Union Constitution Committee met on June 6, 1947 to consider whether the Constitution would be a unitary or a federal one This imposing list of starred dignitaries decided at that time that the Constitution should have a federal structure with a strong centre. See also Jennings (1953). 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 instance 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 nearly as may be in accordance with the Government of India Act, 1935. Section 9(1)(c) Indian Independence Act, 1947 reads, The Governor-General shall by order make such provision as appears to him to be necessary or expedient for making omissions from, additions to, and adaptations and modications of, the Government of India Act, 1935, and the Orders in Council, rules and other instruments made thereunder, in their application to the separate new Dominions Section 6 of the Government of India Act, 1935 was substituted by Section 6 of the India (Provisional 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 signied his acceptance of an Instrument of Accession executed by the Ruler thereof whereby the Ruler on the behalf of the State:a) Declares that he accedes to the Dominion with the intent that the Governor-General, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion 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 applicable therein by virtue of the Instrument of Accession. (2) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion Legislature 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

6 7 8

10

11

authority of the Dominion in the State, are respectively to be subject. (3) A Ruler may, by a supplementary Instrument executed by him and accepted by the Governor-General, vary the Instrument of Accession of his State by extending the functions which by virtue of that Instrument are exercisable by any Dominion authority in relation 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 under this Section, is referred to as the Instrument 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 under 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. See also Abdullah (nd), p 15. Constituent Assembly Debate, Vol X, pp 422-25. According to the presidents order of 26 January 1950, Parliament could make laws applicable 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. According to the Order (of 1954), 98 more articles of the Constitution of India were extended to Kashmir state. See also Anand (2006: 122). This Order (of 1954) superseded the Constitution (Application to Jammu and Kashmir) Order, 1950 and precisely dened the scope and extent of the limitations on the states sovereignty, consequent to its accession to India. 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 (imposition of president's rule) was applied despite provision in the states constitution for governors rule (Section 92). This was done on 21 November 1964. On 24 November 1966, the governor 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 constitutional amendments. He was elected by the assembly [Section 27 (2)]. To replace him by the centres nominee was to alter the basic structure. See Noorani (2000). To Loewenstein (1965), the concept is misleading (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 absorbs, within the limits of the Constitution, the
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original sovereignties of the member units. Shared power in a federal organisation must not be equated with a system of dual sovereignty. 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. Article 245 of the Constitution of India. Article 246 of the Constitution of India. For details, see Constitutional Order, 1954. Item 8 of the union list which deals with the Central Bureau of Investigation is not applicable to Jammu and Kashmir; Parliament has no power to legislate on preventive detention for reasons connected 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 Kashmir; 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 Kashmir; 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 Kashmir. See Teng, M K (1990) and Teng, Krishan Mohan (1975). For details, see Constitutional Order, 1954. Article 246(2) of the Constitution of India. Article 248 of the Constitution of India. The residuary sovereignty of the state was fully safeguarded under Clauses 8 and 7 of the instrument of accession. For international law this division of competence is only of interest insofar as it concerns competence in international matters. Using the concept in the broader sense, M P Jain has observed that the meaning of the concept of cooperative federalism is the promotion of cooperation and minimisation of friction between the various constituent governments of the federal union whether it is centre vs state or state vs state. The realisation that the promotion 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 essence of cooperative federalism. Cooperative federalism has been nourished, according to Pal (1984: 213) by three main factors: (a) the exigencies of war; (b) technological advances making means of communication faster; and (c) the emergence of the concept of a social welfare state. Article 352 of the Constitution of India. Section 45 of the Government of India Act, 1935 conferred a similar power on the governor general 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). The powers conferred by Article 356 is a conditional 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. The power vested in and or exercisable by a high court shall not be assumed by the president 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 contemplates, the judicial control over administrative action devised by the Constitution as necessary for authoritative correction of the errors of administration have been insulated from usurpation by the administration as a safeguard for ensuring the rule of law.
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13 14 15 16

17 18 19 20

21 22

23

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 applicable law. The state is expected to play a proactive 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 being 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 constitutional provisions pertaining to grants-in-aid and the Second Finance Commission in its interim report covered the nancial integration 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 supervisory 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 (halfsovereign states) can have no international position whatsoever; Oppenheim and Lauterpacht (1970), pp 119-23, 175-78 and 190-94.

References
Primary Sources
Constituent Assembly Debates Vol X Government of India Act, 1935 Indian Independence Act, 1947 Instrument of Accession The Constitution (Application to Jammu and Kashmir) Order, 1954 The Constitution of India

24 25

26

Secondary Sources
Abdullah, S M (nd): Kashmir and India Constitutional Aspect. Agarwa, H O (1979): Kashmir Problem: Its Legal Aspect (Allahabad: Kitab Mahala). Alexandrowicz, C H (1957): Constitutional Developments in India (New Delhi: Oxford University Press). Anand, A S (2006): The Constitution of Jammu And Kashmir: Its Development and Comments, 5th edition (Delhi: Light and Life Publishers). Austin, Granville (1974): The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press). Bamzai, P N K (2007): Cultural and Political History of Kashmir (Srinagar: Gulshan Books).
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