Professional Documents
Culture Documents
Economic and Political Weekly Economic and Political Weekly
Economic and Political Weekly Economic and Political Weekly
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Economic and Political Weekly is collaborating with JSTOR to digitize, preserve and extend
access to Economic and Political Weekly
This content downloaded from 157.34.90.49 on Sun, 20 Oct 2019 06:24:41 UTC
All use subject to https://about.jstor.org/terms
NOTES
for Jammu and Kashmir while the rest of the articles could only
be made applicable by virtue of presi
dential orders, in consultation with the
Government of Jammu and Kashmir, in
GAZALA PEER, JAVEDUR RAHMAN matters related to the Instrument of
Accession (ioa).
A comparison with the (iii) Under Article 370(1) (b) (ii), the
constitutions of the United States to be battling with the ques president was given powers to pass
and China reveals that
Many parts ofnational
tion of their theexistence
world continue presidential orders over the matters not
even in today's era characterised by the specified in the ioa. However the passing
Article 370 of the Indian "human rights revolution". These parts of such orders was made subject to the
Constitution - which recognises of the world - Kurdistan, Tibet, Jammu concurrence of the state government.
the special status for the state of and Kashmir, etc - are distinct political (iv) Under Article 370(1)®, the power
entities, usually products of war or an of the state government to accord con
Jammu and Kashmir - is neither
empire. In the case of Jammu and Kashmir, currence to the orders passed by the
against its federal character nor its distinct political identity was accepted president in matters other than the
its unitary scheme. It is important
and recognised within the Indian Consti items mentioned in the ioa would end,
to restore the "inviolability" of tution under the aegis of Article 370. once the state's Constituent Assembly
The de facto usage of this provision has was convened. Additionally, it states
Article 370 - which has constantly
however been done in a manner that that the power of the Constituent
eroded over time - so that the two
has eroded the autonomy guaranteedAssembly to rectify such orders would
constitutions, i e, Constitution to the State, a condition which Patrick
end the day the Constituent Assembly
of Jammu and Kashmir and the was dissolved.
Hoeing et al (2010) describe as "a classic
example of a careful calibration of power
(v) Article 370(3) empowers the president
Constitution of India can work
in centre-state relations existing on
to make an order to abrogate or amend
harmoniously and within the paper only". Article 370. However, the recommen
principles of constitutionalism. Consensus seems to be emerging, dation of the state's Constituent Assem
elsewhere, in the belief that these bly was made mandatory in this regard.
regions can work better in the fulfilment(vi) Article 370 would not be abrogated
or amended since no constitutional
of their aspirations if they are given suf
amendment can have effect in relation
ficient autonomy to deal with their own
to the state of Jammu and Kashmir
affairs (Choudhary 2007). It is therefore
imperative to compare the present stateunless applied by order of the president
of affairs in India with similar situations under Article 370. This is because amend
across the world where nations have not ment to Article 370 requires recommend
only recognised the distinct political ation of the Constituent Assembly which
identities of similar regions but havewas dissolved in 1956 after it completed
also given and respected their autonomydrafting the State's Constitution.
in order that they may function well The aforementioned analysis of Article
within constitutional frameworks. 370 highlights the extent of autonomy
that was guaranteed to the state of
Article 370: The Promise Jammu and Kashmir, so much so that it
The relationship between India andwas
theallowed to have amongst others, its
own Constitution, judiciary, legislature
state of Jammu and Kashmir, as expressed
through Article 370 (Noorani 2010),
andisexecutive. Its autonomy was further
as follows: underscored by the fact that residuary
powers under schedule vii of the
(i) Although under Article 238 (which
Gazala Peer (gazalapeer@gmail.com) and Constitution of India were vested with
now stands deleted) the state of Jammu
Javedur Rahman study at the West Bengal
and Kashmir was incorporated as one theofstate government and not with
Institute of Judicial Studies, Kolkata.
the states of India, provisions werethe
notParliament.
This content downloaded from 157.34.90.49 on Sun, 20 Oct 2019 06:24:41 UTC
All use subject to https://about.jstor.org/terms
NOTES
This content downloaded from 157.34.90.49 on Sun, 20 Oct 2019 06:24:41 UTC
All use subject to https://about.jstor.org/terms
NOTES
This content downloaded from 157.34.90.49 on Sun, 20 Oct 2019 06:24:41 UTC
All use subject to https://about.jstor.org/terms
NOTES
established with the establishment of upon the autonomy of the state of has a Constitution of its own. Similarly, the
State of Jammu and Kashmir has a right to
the basic law for the special adminiJammu and Kashmir. The Indian state determine its own Constitution, (iii) An Ameri
strative zone of Hong Kong, a law passedmust work within the principles of con can has dual citizenship, i e, a person is a citi
zen of the State as well as citizen of the federa
by the highest lawmaking authority, thestitutionalism in order to retain legiti
tion. Similarly, in case of Jammu and Kashmir
National People's Congress. Hong Kong macy to rule over the State. To sum up, it a resident has in a way two citizenships. He/
she is a permanent resident of the state of Jam
thus enjoys autonomy in having a constiis important to restore the "inviolability" mu and Kashmir under section 6 of the Consti
tution of its own; having independent of Article 370. tution of Jammu and Kashmir. He/she is also a
executive, administrative and judicial citizen of India. This arrangement gives him/her
different sets of privileges and immunities un
powers; controlling its own external NOTES der law. (iv) In the United States there is a dual
affairs, etc, despite the sovereignty of 1 See Anand system of administration of justice one for the
(2010) (although in case of subjects
State and a separate systems Federation. Simi
China over Hong Kong being recognised mentioned in the IOA, it only required consul
larly, before passing of the controversial Presi
tation of the state government).
in the constitution of Hong Kong itself.12 2 Nanda (1949) - "we have also agreed that dential Order of 1954 the State of Jammu and
the
Kashmir had a separate judicial system and the
The arrangement of Hong Kong within will of the people through the Instrument of
Supreme Court had jurisdiction only over the
the constitution of China demonstrates the Constituent Assembly will determine the of external affairs, communication
matters
Constitution of the State as well as spheres of
and defence.
the autonomy it enjoys without under union jurisdiction over the State...you will re
11 Benny (2003) - "The State may establish spe
member that several of these clauses provide
mining the sovereignty of China. Thus, cial administrative regions when necessary.
for the concurrence of the government of Jam
The systems to be instituted in special adminis
even in a rigid unitary constitution, a mu and Kashmir state. Now, these relate par
trative regions shall be prescribed by law en
ticularly to matters which are not mentioned in
state or region can be accommodated acted by the National People's Congress in the
the Instrument of Accession, and it is our com
because of the reason of special circum mitment to the people and the government light of the specific conditions." Two SAZ have
of
Kashmir that no such additions should be made been set up, i e, Macau and Hong Kong.
stances which are reflected in the pream 12 Ibid - "...the People's Republic of China has
except with the consent of the Constituent
ble of the constitution of Hong Kong. Assembly which may be called in the State for decided that upon China's resumption of the
the purpose of framing its Constitution. In exercise of sovereignty over Hong Kong, a
The circumstance for the special status Hong Kong Special Administrative Region will
other words, what are we committed to is that
of the state of Jammu and Kashmir was these additions are matters for determination be established in accordance with the provi
sions of Article 31 of the Constitution of the
the ioa signed between India and the of the Constituent Assembly of the State"; See
People's Republic of China, and that under the
also Noorani (2000).
monarch of the then country of Jammu 3 Prem Nath Koul vs State ofJammu and Kashmir,
principle of 'One Country, Two Systems', the
and Kashmir. socialist system and policies will not be prac
AIR 1959 SC 749.
tised in Hong Kong".
4 See Noorani (2000) - "The Continuance of the
Exercise of Powers Conferred on the Parlia
Conclusions
ment and the President by the Relevant Tempo
REFERENCES
rary Provision of Article 370(1) is Made Condi
The aforementioned arguments highlight
tional on the Final Approval by the said Anand, A S (1998): The Constitution ofJammu and
the insolent treatment meted out to
Kashmir (New Delhi: Universal Law Publication).
Constituent Assembly in the Said Matters". It
Article 370 through the passage of time referred to Clause 3 and said that "the proviso
- (2010): The Constitution of Jammu and Kashmi
to Clause (3) also emphasises the importance (New Delhi: Universal Law Publication).
that has resulted in the erosion of auto which was attached to the final decision of
Basu, D D (2008): Comparative Federalism (Ne
nomy guaranteed to the state of Jammu Constituent Assembly of Kashmir in regard to Delhi: Wadhwa and Company).
the relevant matters covered by Article 370."
and Kashmir. Although Article 370 pro Benny, Y T Tai (2003): "China/Hong Kong", Inte
The Court ruled that "the Constitution-makers
national Journal of Constitutional Law, 1:147.
vides legality and validity for the govern were obviously anxious that the said relation
Choudhary, Sujit (2007): Rethinking Comparativ
ance of the state of Jammu and Kashmir ship should be finally determined by the Constitutional Law: Multinational Democra
Constituent Assembly of the State itself'.
cies, Constitutional Amendment, and Secession,
by India, the application of the powers 5 Sampat Prakash vs State ofJammu and Kashmir,
25 July, viewed on 9 December 2010 (http://
and rules under this Article have to be AIR 1970 SC 1118.
www.allacademic.com/meta/p177524_index.
6 Mohammed Maqbool Damnoo vs State of html).
subjected to the ioa, since it is a mani Jammu and Kashmir, AIR 1972, SC 963.
Lone, G A (1995): "How the Manipulation Was
festation of the bargain between India 7 Watts 2004 ("Symmetrical federation means
Done in a Single Day against the Law Secre
and Jammu and Kashmir, which served where there is uniformity among member tary's Advice and in the Absence of a Council of
States in the pattern of their relationship with
Ministers", Kashmir Times, 20 April.
as a basis for the insertion of Article 370 the federal system and the member units have
Nanda, G L (1949): "In Report of the State Auto
in the Constitution of India. the same bundles of powers").
nomy Committee", published by General
8 Maharashtra and Gujarat (Article 371), Naga
A comparison with the autonomy Administrative Department, Jammu and
land (Article 371 A), Assam (Article 371 B),
Kashmir Government, July 2000, Jammu and
granted by the constitution of China and Manipur (Article 371C), Andhra Pradesh (Arti Kashmir.
cle 371D and Article 371E), Sikkim (Article 371
the us to its units is enough to establish F), Mizoram (Article 371 G), Arunachal Hoeing, P Totem and Taboo (2010): "The Case for a
Secession Clause in the Indian Constitution"
that Article 370 is neither against the Pradesh (Article 371H), Goa (Article 3711).
Economic & Political Weekly, 25 September,
9 This article is written presuming the Instru
federal character nor against the unitary ment of Accession to be valid. Vol XLV, No 39.
scheme of the Indian Constitution. Like10 Some examples of such legal implications are Noorani, A G (2000): "Article 370: Law and Politics",
Frontline, 16 September, Vol 17, Issue 19.
as follows: (i) as the United States is "an inde
the respect that is accorded by Hong - (2010): "A Cruel Hoax", Frontline, 30 January:
structible Union composed of indestructible
Kong and us to the autonomy of its units, States" the federal government has no power to Vol 27, Issue 3.
the special status accorded to the state redraw the boundary of a State without the Rao M Govinda et al (2004): "Asymmetric Federal
consent of that State. Similarly, the boundary ism in India", available online at: www.nipfp.
of Jammu and Kashmir should not only of the State of Jammu and Kashmir cannot be org.in/working_paper/wpo4_nipfp_oo6.pdf,
last visited on 11 November 2010.
be respected, but the Indian state altered under Article 3 of the Constitution of
India. The boundary or name of the State can Watts, L Ronald (2004): "A Comparative Perspec
should also refrain from employing only be altered with the consent of the State tive on Asymmetry in Federations", Asymmetry
unconstitutional tactics which encroach legislature, (ii) In the United States every State Series, 2004(4), IIGR, Queen's University.
This content downloaded from 157.34.90.49 on Sun, 20 Oct 2019 06:24:41 UTC
All use subject to https://about.jstor.org/terms