Constitutional Amendments

Subsuming Jammu & Kashmir: A Winter Solstice for the

Submitted to:
Professor Alexander Fischer
Jindal Global Law School

Submitted by:
Pravir Malhotra
20171436

Jindal Global Law School,

Analogical to how contact with moisture and oxygen rusts iron over time, our understanding
of the term ‘federalism’ has also taken on many forms over the past century after coming in
contact with judicial and legislative discourse. It would not only be far too simple but also an
unnecessary strain on the mind to reproduce popular definitions of the term ‘asymmetric
federalism’ in order to explain the concept in my essay. A childish understanding of the term
‘symmetry’ would immediately prompt me to note that symmetry and equality cannot be
used interchangeably. This is because both of these concepts can exist independently while
completely excluding the characteristics of the other. This makes me question why we do not
use the term ‘inequal federalism’ in order to describe the imbalanced situation that has been
created with regards to the powers of the States and the Union. One plausible explanation for
this is that our analysis will be limited in scope to the legislative and statutory
understanding of differences in federalism horizontally and vertically, i.e. among States as
well as between the Union and States. Inequality may exist in interpretation, but having
symmetrical principles to govern is the first step to achieving reliable federalism. In this
manner, studying ‘asymmetric federalism’ is a much more feasible approach to understand
current crises. While India retains its image as a federation, the asymmetry within the system
grants the nation the identity of a single autonomous region with a multiplicity of sub-regions
with differential rights.1 My contention is that this is because the States, as this essay will
indicate, did not necessarily opt to federate voluntarily but instead found themselves existing
in an intergovernmental relationship right after independence.2

II. TEMPORAL CHANGES

While discussing asymmetric federalism, it becomes impossible to ignore the elephant in the
room, i.e. the withdrawal of special status granted to Jammu & Kashmir under Article 370 of
the Indian Constitution this August.3 Article 370 is an enabling provision that allowed for the
Union of India to exercise its jurisdiction over the territory of Jammu & Kashmir. The
Presidential Order C.O. 272 and a Statutory Resolution introduced in the Rajya Sabha was
recently used to neutralize the unique cornerstones of Jammu & Kashmir and steal its
autonomy by abrogating Section 3 of Article 370. 4 This is the winter solstice I am referring
to, the beginning of what I presume will be an inevitable chain of controversy. I attempt to
critically analyse the reasons for the same while contrasting the status of Jammu & Kashmir
under Article 370 with the change in powers as we start treating them as two distinct Union
Territories. My argument is in favour of Article 370 and I seek to prove that this move by the
Union Government is not only controversial but also undemocratic and unconstitutional.
Article 370 was included in the Constitution on October 17, 1949 as Article 306A and
became operative as Article 370 from November 17, 1952. This exempted the State of
1
Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, The Oxford Handbook of the Indian Constitution,
Oxford University Press 2016.
2
Rao, Govinda M. and Nirvikar Singh, Asymmetric Federalism in India, UC Santa Cruz International
Economics Working Paper No. 04-08, https://ssrn.com/abstract=537782, April 2004.
3
K. Venkataramanan, “Explained: India’s asymmetric federalism,” The Hindu,
https://www.thehindu.com/news/national/the-forms-of-federalism-in-india/article28977671.ece, August 2019.
4
Varghese K. George, “Is the removal of special status for J&K justified?” The Hindu,
https://www.thehindu.com/opinion/op-ed/is-the-removal-of-special-status-for-jk-justified/article29103095.ece,
August 2019.

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Jammu & Kashmir from the Constitution of India with the exception of Articles 1, 35A, and
370 itself. Article 370 granted immense power to the State of Jammu & Kashmir by allowing
it to have its own Constitution and even its own flag. The State bars outsiders from holding
property, itself defines the term ‘permanent residents’, and enjoys immunity from Indian laws
automatically applying to it unless first ratified. Having its own penal and criminal procedural
codes furthered the unique nature of this State. 5 Now, the State exists as the Union Territory
of Jammu & Kashmir with a legislature and the Union Territory of Ladakh, operating without
an independent legislature.6

III. USING ARTICLE 370 AGAINST ARTICLE 370

Article 370 is the first article in Part XXI of the Constitution, titled “Temporary, Transitional
and Special Provisions.”7 In Kumari Vijaylakshmi Jha v The Union of India, the Delhi High
Court rejected a petition that Article 370 is temporary in nature and that its continuation is a
fraud on the Constitution.8 In Sampat Prakash v State of Jammu and Kashmir, the Supreme
Court ruled that the President can only issue an order under Article 370 with the concurrence
of the State Government.9 The State Assembly was dissolved in 2018 and elections
continue to remain pending. The excuse for the abrogation of Article 370 in this arbitrary
manner is the absence of a Constituent Assembly in the State, allegedly giving effective
power to the Central Government. 10 We may turn back the crippled pages of time to
understand the intention behind creating Article 370. We may look to the Constituent
Assembly debates where Gopalaswami Ayyangar may be famously quoted, “Several of these
clauses provide for the concurrence of the Government of the Jammu and Kashmir State… it
is one of our commitments to the people and Government of Kashmir that no such additions
should be made except with the consent of the Constituent Assembly.”11
Article 3 grants the power to the Parliament to form a new State, increase the area of a State,
diminish area, as well as alter boundaries.12 This includes the power to form new Union
Territories.13 However, this Article specifies that such a Bill can only be introduced on the
recommendation of the President who must refer it to the legislature of that State, an integral
step that has been circumvented by the Union Government.

It is quite easy to foresee that the powers of the State Government will be severely curtailed
as a consequence of this recent change. There are new opportunities for the interference and
5
Ibid.
6
PRS Legislative Research, “The Jammu and Kashmir Reorganization Bill, 2019,” PRS India,
https://www.prsindia.org/billtrack/jammu-and-kashmir-reorganisation-bill-2019, August 2019.
7
The Constitution of India, 1950.
8
Kumari Vijaylakshmi Jha v The Union of India W.P.(C) 9300/2015.
9
Sampat Prakash v State of Jammu and Kashmir 1969 AIR 1153.
10
Faizan Mustafa, “Explained: What are Articles 370 and 35A?” The Indian Express,
https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-
5610996/, 6 August 2019.
11
India TV News Desk, “Explained: Kashmir, Article 370 and its political trajectory,” India TV,
https://www.indiatvnews.com/fyi/kashmir-article-370-constitution-hari-singh-clauses-540474, 5 August 2019.
12
Supra note 7.
13
18th Constitutional Amendment Act, 1966.

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control of the Union Government. All power will now lie with the Lieutenant Governor,
effectively taking away the voice of the citizens. ‘Police’ and ‘Public Order’ from the State
List have been excluded from the purview of the State Legislature.14
A closer jurisprudential analysis of the matter leads me to understand that there is an
internal and an external point of view that the Jammu & Kashmir issue can be perceived in. 15
While the Union Government conveniently altered the nature of the State sitting outside the
metaphorical danger-zone, I believe that it is only the citizens of Jammu & Kashmir and the
State legislature themselves that are aware of the internal situation of the State and should
have a say in the matters affecting the administration of the State.
Empirical evidence suggests that it is the periodic erosion of Article 370 which has given rise
to separatist elements in the State.16 Former Chief Minister Mehbooba Mufti believes that the
division has been done along communal lines and the intention behind it is to disempower
minorities in what used-to-be the only Muslim-majority State.17

IV. CONCLUDING REMARKS

The federal structure of India not only exhibits strikingly asymmetric qualities, but also
stands threatened after the Union Government effectively dismembered a State of its powers
as guaranteed by the Constitution of India. Martin Luther King Jr. once famously stated that
the paradox of our times is that we have guided missiles but misguided men. The grave
unconstitutionality exhibited by the Union Government forces me to think about the status of
the citizens of Jammu & Kashmir and how they have been deprived of their fundamental
rights by being removed from the social and political discourse that must precede a strong-
footed decision like such.

14
Supra note 6.
15
H. L. A. Hart, The Concept of Law, 1961.
16
Supra note 4.
17
India Today Web Desk, “Kashmir Article 370: Omar Abdullah, Mehbooba Mufti arrested,” India Today,
https://www.indiatoday.in/india/story/kashmir-article-370-mehbooba-mufti-arrested-taken-to-guest-house-
1577554-2019-08-05, 5 August 2019.