Although
Hindus constitute a clear majority (80.5%) of India’s population, the
country is characterised by a substantial minority of Muslims (13.4%),
as well as several smaller religious communities like Christians (2.3%),
Sikhs (1.9%), Buddhists (0.8%) and Jains (0.4%).[1]
Even the large Hindu population cannot be regarded as a single
homogeneous unit, as it is divided along regional and linguistic lines
as well as by caste affiliation. In spite of the numerical predominance
of Hinduism, the authors of the Indian Constitution IC) refrained from
declaring it the official religion of the country and explicitly named
secularism in the preamble as an essential characteristic of the
republic. They did however consider the issue of religion, granting
certain cultural and educational rights to both religious and linguistic
minorities (Article 29 and
30 IC).
With
regard to its linguistic demographics, India is even more diverse than
in its religious affiliations. Though a consensus among linguists is
lacking, some estimates contend that as many as 1,632 languages are
spoken in the country (Basu 2002: 387). Most of these are broadly
classified as belonging to one of two major language families:
Indo-Aryan (76.9%) and Dravidian (20.8%). Although Hindi is the most
widespread mother tongue, at 41.0% it is far from being in a majority
position, but substantially more common than the languages which follow
in the ranking: Bengali (8.1%), Telugu (7.1%), Marathi (7.0%), Tamil
(5.9%) and Urdu (5.0%).
In contrast to religions, the framers of
the Constitution could not maintain a completely neutral position
towards languages and treat all of them equally. For the purpose of
conducting governmental affairs, a decision for an official language was
necessary. Following a prolonged debate, the Constituent Assembly chose
Hindi (Article 343 (1)
IC) by a narrow margin as the official language of an independent
India, instead of Hindustani, a mixture of Hindi and Urdu which had
been the national language under the British Raj. Moreover, English was
defined as a co-official language for both the publication of official
documents and communication between the Union and the states[2]
for a period of 15 years. Though this was intended to be a temporary
measure, English was eventually affirmed in 1965 for an indefinite time
period as the official link-language, owing to the fierce opposition of
some non-Hindi-majority states (Arora 2008: 207). Apart from this
situation at the Union level, each state is entitled to designate its
own official languages (Article 345 IC).
As a result, there are currently as many as 41 official languages at
the state level and 16 states grant Hindi neither sole official nor
co-official status.
Once
we shift the focus from India to the State of Jammu and Kashmir
(hereinafter J&K) it becomes immediately clear that this State is
equally characterised by enormous diversity, but quite distinct from the
rest of the country in terms of its religious and linguistic
demographics. In religious terms it is one of only five states with a
non-Hindu majority,[3]
and the only one with a Muslim majority (67.0%). However, the Muslim
segment of the population is not as homogeneous as it might seem at
first glance. This is due to the cultural distinctiveness of the State’s
three historical regions (see the map below): Kashmir (5.48 million), Jammu (4.43 million)
and Ladakh (0.24 million).[4]
Of the total population living in the fertile Kashmir Valley, 97.2% are
Sunni Muslims. Most of them are Kashmiri speakers and share many
cultural traditions with the Hindus of the Valley, the Kashmiri Pandits.
Kashmiri Muslims have little in common with the Muslims of the thinly
populated Ladakh, who are predominantly followers of Shia Islam.
Comprising 47.4% of the population in this region, they constitute one
of its two large religious communities alongside Buddhists (45.9%).
Muslims of Jammu, the most diverse of the three historical regions, make
up 30.7% of the population and are again quite varied in their
affiliations. They range from Guijars and Bakkarwals, mountain
pastoralists and herdsmen, to Rajputs, and even high-caste Hindu
converts to Islam (Bose 2003: 9-10). Jammu’s Hindu majority (65.2%) is
also differentiated considerably along linguistic lines as well as caste
affiliation and local identity.
Not surprisingly, this religious
diversity is accompanied by linguistic diversity. Six languages are
recognised in the Sixth Schedule of the Constitution of J&K as
regional languages.[5]
However, Section 145 of the J&K Constitution (J&KC) declares Urdu to be
the official language of the State while providing for the continued use
of English for official purposes. The status of Urdu as the official
language is strongly resented by many people in Jammu and Ladakh because
it is not seen as being representative of the whole State. Urdu is
seldom used in these two historical regions. Only in the Kashmir Valley
is it the language of education, while Kashmiri is used by most people
in everyday life. The fact that Urdu is also the official language of
Pakistan further exacerbates this linguistic irritation in Jammu and
Ladakh (Marwah 2007: 17).
India
is today a federal state composed of five government levels: the 29
states and seven union territories, the divisions (in some of the
states), the districts, the sub-districts, and different territorial
entities at the local level.[6]
This territorial make-up was anything but foreseeable in 1946 when
India’s Constituent Assembly was established. Driven by the omnipresent
fear of secessionism, there were serious doubts in regard to whether or
not the constitution should make provision for a federal state and, if
so, whether the federal structure should take into account the country’s
enormous diversity.
With regard to the first question, the
Constituent Assembly eventually followed a middle ground approach. It
decided to establish a federal state but blended it at the same time
with significant unitary elements. In concrete terms, the Constitution
allows for proclamations of the president of India, in the event of a
national emergency,[7] a state emergency[8] and a financial emergency (Article 360 IC), which in effect transform India into a unitary state during these exceptional circumstances.[9]
Surrendering
to pressure from various parts of the country, in 1956 the Union
government rather reluctantly followed the recommendation of the States
Reorganisation Committee by starting to restructure the then existing 27
states into 14 new states along linguistic lines. It could easily do so
because, unlike other federations such as the United States, the Union
of India is not composed of ‘indestructible states.’[10]
According to Article 3 of Indian Constitution, an ordinary law is
sufficient to form a new state or to alter the boundaries of an existing
state. The language-based restructuring of 1956 was diametrically
opposed to Nehru’s initial preference for heterogeneous states, which he
regarded as protection against a rise of parochial and separate
identities detrimental to national unity and eventually to territorial
integrity (King 1997: 138). However, the 14 states did not remain
unchanged. At first, the process of creating new states and redrawing
boundaries continued until the 1970s and then gained momentum in the
1990s when the hegemony of the Indian National Congress (hereinafter
INC) was replaced by period of coalition governments including regional
and state-based parties (Majeed 2010: 23-46). A clear indication of the
ongoing process of territorial reorganization is the creation of the new
states of Chhattisgarh, Uttaranchal and Jharkhand in 2000 and Telangana
in 2014. In hindsight, the reorganisation of states has altogether been
quite successful in accommodating linguistic identities, though calls
for the creation of new states or even for secession persist
(Castellino–Domínguez Redondo 2006).
Whereas the INC-dominated
Constituent Assembly had still openly refused to label India as a
federation and had insisted successfully on the introduction of
significant unitary features,[11] the court explicitly recognised in
Keshavanada Bharati v. State of Kerala (1973)
the federal character of the Constitution as one of five fundamental
constitutional elements that are beyond the power of amendment.[12]
However, in times of one-party hegemony this new status of federalism
as a cornerstone of India’s political system had practically been
thwarted by relentless political centralism. Only during the last two
decades have the changes of the party system together with economic
liberalisation produced a recognisable, albeit still slight tendency
towards an at least politically, if not legally, more decentralised
federal state (Majeed 2005: 181-183).
As far as the scope of
territorial autonomy within India is concerned, there is a fundamental
distinction between the states and union territories. The fact that in
the latter case administrators or lieutenant-governors are in principle
appointed by the president of India,[13]
creates two classes of subnational entities. However, these union
territories are clear exceptions, representing only a tiny share (1.6%)
of India’s total population. Among the states, there are few examples of
constitutionally entrenched special status. These merely concern
certain border areas marked by – even by Indian standards – particular
diversity (Arora 2008: 212): Jammu and Kashmir (Article 370 IC) along with the north-eastern states of Nagaland (Article 371A IC), Sikkim (Article 371F IC) and Mizoram (Article 371G IC).
Although Article 2 of the Indian fundamental law provides an explicit
constitutional basis for asymmetry by empowering the Union parliament to
“admit into the Union, or establish new States on such terms and
conditions as it thinks fit”, it is clear that special status is granted
to states only in exceptional cases. At the level of the districts,
into which all states and union territories are subdivided, asymmetry is
again the exception rather than the rule. Out of 655 districts only 13
have a special status by being endowed with Autonomous District
Councils. Ten of these are located in tribal areas of the north-eastern
states of Assam, Meghalaya, Tripura and Mizoram, while the remaining
ones are in West Bengal and J&K.
Within
this Indian federation, which has over time undergone such significant
changes, autonomy is conferred on a territorial basis to different
entities at different levels of government, among them the State of
J&K. The territory of this State as a point of reference for
autonomy is simultaneously defined and protected by the Constitution of
India. According to its First Schedule, J&K comprises the entire
area of the princely state which acceded to India in 1947, i.e. also the
areas that are presently not under Indian control. The demarcation of
the State territory in Section 3 of the J&K Constitution is in line
with this definition. Moreover, the territory of J&K enjoys
extraordinary protection under the Indian Constitution. As outlined
above, Article 3 of the fundamental law endows the Union parliament with
the power to form a new state or to alter the boundaries of an existing
state through ordinary law. This general rule of unilateral territorial
changes does not apply to J&K. In this specific case, the consent
of the State legislature is indispensable for such a change to come into
effect.
At district level, there are in J&K, more
specifically in Ladakh, the two Autonomous District Councils of Leh and
Kargil, which were created in 1996 and 2003 respectively. The other 20
normal districts of J&K are part of either the Jammu division or the
Kashmir Valley division. These two territorial entities merely serve
administrative purposes and are devoid of real policy-making power.
Autonomy on a territorial basis is therefore only granted at the state
level to J&K and at the sub-state level to the districts of Leh and
Kargil.
The
genesis of the still ongoing conflict in J&K can be traced back to
the period of British colonial rule. In the aftermath of the First
Anglo-Sikh War, the British ended Sikh rule over the predominantly
Muslim province of Kashmir and incorporated it into the realm of the
Hindu Dogra Maharaja of Jammu under the Treaty of Amritsar of 1846.
While religious tensions were initially suppressed by the absolute rule
of the Maharaja, they were bound to surface under the specific political
circumstances of decolonisation. Whereas British India, i.e. the
territories under direct colonial rule, was simply incorporated into
India or Pakistan, the rulers of the 565 princely states, which had
enjoyed autonomy under British suzerainty, were provided by the outgoing
colonial power with three options: accession to India or Pakistan, or
independence. The latter option existed rather in theory only, as
probably none of the princely states was in a position to survive
politically and economically in the face of the two giant neighbouring
countries. Moreover, as the British colonial empire on the subcontinent
disintegrated into many small states, the fear of increasing instability
became a major concern of the most important actors in the
international arena. Independence was therefore also highly unlikely to
find support abroad (Behera 2006: 213). As a result, the Maharaja Hari
Singh faced the dilemma of having to choose
de facto between Pakistan and India. Being a
Hindu prince he could not expect to remain in power in the Islamic
Republic of Pakistan. But on the other hand, he was also highly critical
of India and its INC leadership because it opposed the authoritarian
rule of the princes and maintained close ties with Sheik Abdullah, the
popular Kashmiri leader and main rival of the Maharaja Hari Singh. The
fact that the latter was unable to reach a decision about this situation
additionally intensified the territorial claims of both India and
Pakistan (Marwah 2007: 5).
After Pakistan, perceiving itself as
the kin-state of Kashmiri Muslims, had assisted armed tribesmen in
conquering parts of the Maharaja’s territory, the Indian government
readily accepted the request of the ruler for military help. In turn,
however, the Indian government made him sign the Instrument of Accession
on 27 October 1947, through which the territory of the princely state
was transferred to India. However, the parts under Pakistani control,
i.e. the Northern Areas and the so-called Azad Kashmir, have remained
beyond India’s reach. They are as disputed today as the parts of the
princely state territory which have come under Chinese control since the
1960s. These are Aksai Chin, an area over which India and China fought a
brief war in 1962, and the Trans-Karakoram Tract, which was ceded by
Pakistan to China in 1963 but is still claimed by India on the basis of
the Instrument of Accession (see map below).
When
the Maharaja signed the Instrument of Accession, he only relinquished
his jurisdiction concerning matters of external affairs, defence and
communications to India under Clause 8. Even regarding these matters,
J&K retained according to the judgment of the Supreme Court of India
in
Rehman Shagoo v. State of Jammu and Kashmir(1959)
the power to legislate as long as State laws are not repugnant to any
Union laws. Moreover, the Maharaja made explicitly clear in Clause 7
that he does not commit himself “in any way to acceptance of any future
Constitution of India.”
The war between India and Pakistan
continued for more than a year until both parties accepted a UN-brokered
ceasefire in January 1949. The agreement required Pakistan to withdraw
its regular and irregular forces and India to reduce its troops to the
minimum strength necessary for preserving law and order. In compliance
with these conditions, the UN resolution foresaw a plebiscite to
determine the future of the territory. However, the conflicting parties
neither reached a common understanding of the procedure for
demilitarisation nor of its extent, and the Indian government moved on
to finalise the status of J&K within India.
From May to
October 1949, Nehru and his personal friend Sheik Abdullah, the
archenemy of the Maharaja and meanwhile prime minister of J&K,
bilaterally negotiated Article 370 of the Indian Constitution. This
article was to guarantee J&K’s special status. Whereas the
Constituent Assembly debated all other constitutional provisions in
detail, it only rubberstamped the draft of Article 370, which resulted
from this intergovernmental bargaining (Noorani 2011: 1). The fact that
the Indian government negotiated the terms of membership with J&K
and no other state was not a result of pure generosity and consideration
of its extraordinary circumstances. It was actually forced to do so
because, unlike all other states, Sheik Abdullah’s government did not
allow the Constitution of India to prescribe the State Constitution. It
was allowed to do so as a result of the above-mentioned Clause 7 of the
Instrument of Accession (Anand 2004: 91-93).
Article 370 of the
Indian Constitution, which came into effect on 26 January 1950, is a
particular provision not only from a procedural point of view but also
regarding its content. It entrenched the right of J&K to draft its
own Constitution. This power was intended to find its limits exclusively
in the only two provisions of the Indian Constitution which were
declared applicable to J&K: Article 370 itself as well as Article 1,
which in conjunction with the First Schedule defines J&K as a State
of India and its territory. Moreover, Article 370 restricted the
legislative power of the Union parliament to those subjects already
mentioned in the Instrument of Accession, i.e. defence, external affairs
and communications. However, this far-reaching autonomy in both
constitutional and legislative terms was limited by the right of the
Indian president to extend further provisions of the Constitution of
India to J&K by means of special Presidential Orders (Article 370 (2) IC).
In
exercise of the authority conferred upon him by Article 370, the
president of India already issued an Order in 1950 on the day the
Constitution of India was adopted.[14]
Its First Schedule left all matters not explicitly enumerated to the
State, while the Second Schedule extended parts of the Indian
Constitution with several exceptions and modifications to J&K (Anand
2004: 101-108). The special status based on Article 370 and this CO of
1950 was then further cemented bilaterally between Nehru and Sheik
Abdullah in the Delhi Agreement of 24 July 1952. Without following the
procedure prescribed in Article 370 the accord did not have any legal
force. Its purpose from Nehru’s perspective was rather to increase the
Sheik’s political commitment to J&K’s position as a State within
India. The Sheik, however, still sought a final solution based on an
agreement between India and Pakistan (Chadda 2006: 7; Noorani 2011:
9-10).
Problems
soon emerged when it came time to implement the autonomy arrangement.
As internal minorities, both Hindus from Jammu and Buddhists from Ladakh
fiercely opposed Article 370 because they feared that special status
would facilitate the domination of the Kashmir Valley Muslims. Moreover,
the international context had meanwhile become increasingly
unfavourable for the autonomy of J&K, as Pakistan’s rapprochement to
the West alienated the Indian government. The British and, after the
Korean War, the United States began to court India’s rival for
geopolitical reasons. From a Western point of view, close relations with
Pakistan should make the country a cornerstone of the
cordon sanitaire against Communist influence
on the oil-rich and strategically vital Middle East and at the same time
marginalise Nehru and his policies of nonalignment (Behera 2006:
209-216; Chadda 2006: 7).
These unfortunate developments in
J&K and in the international arena resulted in deteriorating
relations at all levels. The increasing tensions between the governments
of India and J&K eventually culminated on 8 August 1953 with Sheikh
Abdullah, who had started to explore the independence option, being
dismissed as prime minister on the charge of having lost the confidence
of his cabinet. Instead of being given the opportunity to prove his
majority in the parliament, Sheikh Abdullah was put under house arrest
and later imprisoned on conspiracy charges. Apart from short
interruptions he remained in jail until 1972.
The following two
decades, between the mid-1950s and mid-1970s, marked the period when
J&K’s autonomy was most extensively curtailed. This was enabled by
fraudulent State elections, in which the INC, led by a nominee of the
Union government, won repeatedly with significant majorities (Bose 2003:
62-68; Noorani 2011: 13). For the latter, having an obedient government
in J&K instead of the ‘politically unreliable’ Sheik Abdullah
solved the crucial problem of being required to obtain the mandatory
concurrence for Presidential Orders. According to the clear wording of
Article 370 (2)[15]
the government of J&K would possess the authority to give
concurrence, which it actually accorded to the above-mentioned
fundamental CO of 1950, only initially. The State government would then
have lost this power to the Constituent Assembly of J&K upon the
establishment of this institution on 31 October 1951. After the
dissolution of the Constituent Assembly on 17 November 1956 the unusual
practice of amending constitutional provisions by simple orders of the
Indian president was supposed to end altogether (Noorani 2011: 5-8;
Anand 2004: 98). While the important CO of 1954 was still constitutional
as a result of the concurrence given by the J&K Constituent
Assembly, orders after 1956 would therefore be unconstitutional
notwithstanding concurrence of the respective State government.
However,
the Indian government claimed that the authority to issue Presidential
Orders would last for an indefinite time and could be exercised
repeatedly as long as it had the concurrence of the J&K government.
In collusion with Union-friendly State governments, which rubberstamped
all proposals from New Delhi, 28 Presidential Orders were issued until
the mid-1970s (Bose 2003: 62-88). Nehru publicly admitted in 1963 that
Article 370 "has been eroded, if I may use the word, and many
things have been done in the last few years which have made the
relationship of Kashmir with the Union of India very close. […] We feel
that this process of gradual erosion of Article 370 is going on. […] We
should allow it to go on."[16]
Not
surprisingly, these internal developments also had negative
repercussions on Indo-Pakistani relations. Tensions eventually escalated
in 1965 and led to the Second Kashmir War. A rapprochement of the two
neighbouring countries was then initiated by the Simla Agreement of
1972, in which both settled on the ceasefire line as a permanent Line of
Control and on a bilateral effort towards a final solution. This
shifting context in relations between the two countries had additional
repercussions on the internal situation – but this time positive ones.
In the face of decreasing tensions with its neighbour, India was ready
to release Sheikh Abdullah, who now refrained from seeking independence,
from prison in 1972 and even accepted him as chief minister of J&K
three years later in the so-called Indira-Sheik Accord.
What
followed in the late 1970s and 1980s however was increasing religious
polarisation that proved to be another stumbling block for the
implementation of autonomy. During these years, the INC started openly
appealing to Hindu sentiments in order to prevent its own imminent
decline. This opportunistic and shortsighted strategy was harmful to the
secular character of India’s democracy in general and utterly
devastating for the political climate in multi-religious states such as
J&K (Shakir 1988: 163). Religious polarisation together with a
culture of political interference by the Union government, corruption
and unemployment gradually increased frustration in J&K. This
tendency finally culminated in the fraudulent State elections of 1987,
which triggered a massive popular revolt (Schofield 2000: 233-235).
The
ensuing armed confrontation with the Indian security forces led to a
complete breakdown of democratic politics between 1987 and 2002. The
beginning of this period was marked by a clear trend towards a
‘Kashmirization’ of the conflict (Bose 2003: 2). Until then the emphasis
had been on the fight between two neighbouring countries over
sovereignty in a contested area, but now a genuinely popular revolt of
Kashmiris against the Union of India emerged. Nevertheless, Pakistan’s
role remained important, as it clashed again with India over the Kashmir
conflict in the Kargil War of 1999 and began to serve more and more as a
base for Jihadis to infiltrate J&K. This transformed an initially
home-grown uprising into a partly externally driven campaign. While
militants in the late 1980s had still adhered to the traditional
Kashmiriyat culture, which can be traced back to the 16thcentury
and is characterised by religious pluralism and a strong affiliation
with their mountainous homeland, Islamic extremists and their agenda of
an Islamic Kashmir united with Pakistan gained increasing support. This
development entailed the forced migration of a great number of Kashmiri
Pandits, the indigenous Hindu population of the Kashmir Valley, to Jammu
or to other parts of India (Chadda 2006: 8; Marwah 2007: 17).
Although
the violence has continued to this day, some developments in the last
decade may be regarded as encouraging. The year 2002 marked the return
to democratic elections in J&K. In the following year, India and
Pakistan restored diplomatic ties and resumed regular talks which
identified at least some points of convergence. Bilateral discussions
have focused since then on a Four-Point formula: reducing the relevance
of the Line of Control, demilitarisation, autonomy, and a joined
management mechanism with members nominated from both sides (Noorani
2011: 26).
In hindsight, the more than six decades that have
passed since the entrenchment of autonomy are characterised by a
deliberate and substantial curtailing of autonomy. Although this was
most intensive until the mid-1970s, Presidential Orders have continued
to restrict the constitutional and legislative autonomy of J&K. In
sum, the 47 Orders prior to 1994 extended to the State 260 out of 395
articles of the Indian Constitution (Ibid.: 13-14).[17]
Thus it seems fair to say that “the special status conferred by the
Constitution, for all practical purposes, no longer exists because it
has been so eroded by the central government” (Stepan et al. 2011: 112).
As
already outlined in the previous section, the basis of autonomy is
formed by the Constitution of India, as far as it is applicable to
J&K, and the Constitution of J&K. The latter is not repugnant to
the Indian Constitution but complementary and must therefore be read in
conjunction with it. Due to its position as a princely state, not ruled
directly by the British, J&K had a Constitution as early as in
colonial times.
The scope of the first democratic Constitution of
J&K, adopted by the Constituent Assembly in 1956, is already clearly
indicated in its Preamble. By exercising its constitution-making power
and in explicit recognition of the Instrument of Accession, the people
of the State of J&K seek “to further define the existing
relationship of the State with the Union of India as an integral part
thereof”. Section 3 then reaffirms that the State “is and shall be an
integral part of the Union of India”, while Section 5 defines the
residuary power of J&K for all matters, which the Constitution of
India does not explicitly reserve to the Union parliament. One of the
earliest and most important decisions of the Constituent Assembly
regarding its own State institutions was to abolish hereditary rule.
However,
the relevance of the State Constitution as legal basis of J&K’s
autonomy is weakened by several central intervention powers. One such
restriction of constitutional autonomy concerns the extension of Article
356 of the Indian Constitution, which allows temporary centralisation
of power in case of state emergency. While the declaration of financial
emergency under Article 360 is not at all applicable with regard to
J&K and the declaration of national emergency under Article 352 is
so only with concurrence, Article 356 was introduced in J&K by a
Presidential Order of 1964.[18]
As a result two types of proclamations are made in case of a “breakdown
of the constitutional machinery” in the State: ‘Governor’s Rule’ under
Section 92 of the J&K Constitution and, in addition, ‘President’s
Rule’ under Article 356 of the Indian Constitution as in all other
states (Basu 1996: 256).
As
to the amendment of the main legal documents, which enshrine the
autonomy of J&K, we must differentiate again between the Union level
and the State level. In Article 370 (3), the Indian Constitution makes
clear that Article 370 can be abrogated or amended by a Presidential
Order. However, such an act requires again the cooperation of the
J&K Constituent Assembly, more specifically, its recommendation of
such an order.
With regard to its amendment, the J&K
Constitution takes a differentiated approach according to the matter in
question. Certain provisions, in concrete terms, Section 3 concerning
accession to India, Section 5 regarding the extent of Union competences,
Section 147 containing the amendment procedure as well as provisions of
the Indian Constitution applicable to J&K, are declared
unalterable. All other sections are relatively flexible insofar as
majorities of two-thirds of the total membership are sufficient in both
houses of the J&K parliament.
After this parliamentary decision-making, the J&K Constitution only
required the assent of the governor. However, with regard to the
amendment of certain provisions pertaining to the governor, the election
commission and the upper house of the J&K parliament, a
Presidential Order of 1975[19]
made it obligatory to obtain the assent of the president of India
(Noorani 2011: 19-20). Thus, an order again restricted J&K’s
constitutional autonomy, even in respect to regulating its own amendment
procedures.
Under the Indian
Constitution the doctrine of separation of powers has not been
explicitly stated as it has in the fundamental laws of other countries.[20]
The same is true in the case of the J&K Constitution. It states
that the executive and legislative power of the State extends to all
matters except those with respect to which the Indian parliament has
power to make laws for the State under the provisions of the Indian
Constitution.
Furthermore, the J&K Constitution requires the State to “take steps
to separate the judiciary from the executive in the public services”. Initially, the State was governed by a
Sadr-e-Riyasat (president) elected by the legislative body and a
Wazir-e-Azam (prime minister). However, the
use of these Urdu language terms that underlined the distinctiveness of
the State was abolished in 1965 through an amendment of the J&K
Constitution.[21]
Not only were the two offices now renamed to governor and chief
minister, respectively, but the head of state was to be appointed by the
Indian president.[22]
Currently,
Section 46 of the J&K Constitution stipulates that the State
legislature consists of the governor and a bicameral legislative body
composed of a lower house called the Legislative Assembly (hereinafter
LA) and an upper house called the Legislative Council (hereinafter LC).
As most of the governor’s functions are linked to the executive branch,
there are certain overlaps between the legislative and the executive. In
conclusion, the J&K Constitution does not provide for a formal and
complete separation of the three branches but aims to achieve the
desired goals of the doctrine of separation of powers by establishing a
system of checks and balances.
The
governor of J&K is the head of the State and he/she exercises the
executive power directly or through offices subordinated to him/her, and
is appointed by the president of India for a mandate of five years. Any
Indian citizen who is at least thirty years old can be appointed in
this position. The Indian president can replace the governor whenever
he/she sees fit (Section 26 (1), (2), Section 27 and Section 28 (1), (3) J&KC)
and “may make such provisions as he thinks fit for the discharge of
functions of the governor in any contingency not provided for” (Section 33 J&KC) in the Constitution. One may argue that such clauses weaken the position of the governor and that their effect may be a
de facto disempowerment of the J&K top
political official. The governor appoints the chief minister and,
following his/her advice, the other ministers and the deputy ministers
from amongst the members of either house of the legislative body.[23]
The chief minister of J&K is the head of the government which is
officially called the Council of Ministers. Most of the executive powers
are vested within the government which has the obligation to
communicate to the governor all its decisions relating to the
administration of State affairs. The government is collectively
responsible to the LA (Section 37 (1) J&KC).
Beside
the executive competences, the J&K Constitution also grants the
governor legislative powers. He/she is part of the legislature without
being a member of the legislative body. The governor summons sessions of
the LA and the LC, as well as prorogues them (Section 53 J&KC). He/she
can dissolve the LA and has the right to appoint several members of the
two houses of the parliament. Furthermore, during the recess of
legislature, the governor has the power to promulgate ordinances with
the same force and effects of a law. These ordinances may be revoked at
any time by him/her but they cease to operate at the expiration of six
weeks from the re-assembly of the parliament, or if before the
expiration of that period a resolution disapproving it is passed by the
LA and agreed to by the LC (Section 91 (2) J&KC).
The governor has a limited veto right in the sense that he/she may
withhold the assent to a law approved by the two houses of the
parliament, sending it back with suggestions for review. However, if the
law is passed again by the legislative body without the requested
amendments, the governor is compelled to accept it (Section 78 J&KC).
Laws or amendments dealing with financial issues (e.g. taxes, financial
obligations of the State, Consolidated Fund of the State) can be
introduced only in the LA following the recommendation of the governor (Section 84 J&KC).
A specific feature of the J&K Constitution is the Governor’s Rule
in the case of failure of constitutional machinery in the State.[24]
Through a proclamation, the governor may assume all or any of the
functions of the government of the State, and all or any of the powers
vested in or exercisable by any authority in the State. Moreover, the
governor may make incidental and consequential provisions that are
necessary for giving effect to the proclamation, including provisions
for suspending in whole or in part the operation of any provision of the
J&K Constitution relating to anybody or authority in the State.
However, the governor cannot assume any of the powers vested in or
exercisable by the High Court of the State or suspend in whole or in
part the operation of any provision of the J&K Constitution relating
to the High Court (Section 92 J&KC).
In
the judicial sphere, the governor has the right to grant pardons,
reprieves, respites or remissions of punishment, and to suspend, remit
or commute the sentence of any person convicted of any offence against
any law relating to a matter to which the executive power of the State
extends.
Furthermore, the governor appoints the district judges in the State and
the administrative staff of the judicial service, in consultation with
the High Court and the Public Service Commission (Section 109 and 110 J&KC).
The LA has a mandate of six years unless it is sooner dissolved by the governor (Section 53 (2) (b) J&KC). If
a proclamation of emergency issued under Article 352 of the Indian
Constitution is in operation, the six-year period may be extended by the
State legislature by law for a period not exceeding one year at a time
and not extending in any case beyond a period of six months after the
proclamation of emergency has ceased to operate (Section 52 (1) J&KC).
The LA is composed of 111 members (hereinafter MLA) chosen by direct
election. The voting system used is first-past-the-post with
single-member constituencies. It is worth noting that the fundamental
law of J&K contains a special provision that aims to ensure the
representation of women in the lower house. If the governor of J&K
is of the opinion that women are underrepresented in the legislative
body, he/she may nominate two women as MLA (Section 47 (1) J&KC). However,
one may argue that in practice the positive effects of this form of
affirmative action are rather limited because, firstly, its enforcement
depends on the will of the governor and, secondly, the two additional
female MLA cannot really influence the decision-making process. Of note
is also the fact that 24 out of the 111 seats are reserved for the
representatives from Pakistan-controlled Kashmir. These seats remain
officially vacant “until the area of the State under the occupation of
Pakistan ceases to be, so occupied and the people residing in that area
elect their representatives” (Section 48 (1) J&KC). This
region is excluded in delimiting the territorial constituencies and the
24 seats are not taken into account for reckoning the total membership
of the LA (Section 48 (1) J&KC).
In conclusion, the lower house has 87 elected members (plus 2 nominated
members). The present delimitation of the LA constituencies was done in
1995 in pursuance of Article 4 (d) of the Jammu and Kashmir
Representation of the People Act of 1957 and seven seats were reserved
for the Scheduled Castes[25]
in the State (Ahuja 2000: 48). Out of the existing 87 LA
constituencies, 46 are in Kashmir, 37 are in Jammu and four are in
Ladakh. The J&K Constitution provides that the number, extent and
boundaries of the territorial constituencies for the LA shall be
readjusted upon the completion of each census (Section 47 (3) J&KC)
and Articles 3 and 4 of the Jammu and Kashmir Representation of the
People Act stipulate the procedure to be followed for the delimitation
of the LA constituencies. In 2002 however, both the Jammu and Kashmir
Representation of the People Act and the J&K Constitution were
amended and the delimitation of the constituencies was postponed until
the official data of the first census taken after the year 2026 is
published.[26]
The
criticism of the 2002 amendment comes mostly from Jammu-based
politicians and academics who argue that a new delimitation of LA
constituencies on the basis of laid down criteria (e.g. geographical
compactness, nature of the terrain, facilities of communication[27])
would increase the numbers of seats allocated to this region. According
to this line of reasoning, the 2002 amendment reflects the will of
Kashmiri Muslim leadership to retain control over State politics (Om
2010). A detailed report on the political, social and economic situation
in J&K commissioned by the Indian Ministry of Home Affairs[28]
points out that people in Jammu and Ladakh strongly believe that the
politicians from Kashmir Valley “have given them a raw deal largely due
to an iniquitous delimitation of constituencies” (Padgaonkar
et al. 2011: 35) and highlights the strong
sentiment in both regions that New Delhi has neglected their grievances
because of their pro-India stance.
Section 49 (1) of the J&K
Constitution stipulates that the number of seats for the Scheduled
Castes shall bear the same proportion to the total number of seats in
the LA as the population of the Scheduled Castes bears to the population
of the State, as ascertained at the last official census. However,
according to the 2002 amendment of J&K Constitution, until the
official data of the first census taken after the year 2026 are
published the reference should be the data of the 1981 census. Section
49 (2) of J&K Constitution establishes the principle that this
affirmative action is a temporary measure.
The LC is a permanent
chamber, as only a fraction of its membership is changed periodically.
The members of LC (hereinafter MLCs) enjoy a tenure of six years but
one-third of them retire after every second year.[29]
The LC consists of 36 MLCs chosen according to a complex scheme laid
down in Section 50 of J&K Constitution: 14 MLCs are elected in the
Jammu administrative division,[30] 14 MLCs are elected in the Kashmir administrative division (including two from Ladakh)[31] and eight MLCs are nominated by the governor.
Only the ‘permanent residents’ of the State as defined in the J&K Constitution can sit in the legislative body.[32]
For each territorial constituency there is one general electoral roll
for the election to either house of the legislative body, and no person
shall be ineligible for inclusion in any such roll on grounds such as
religion, race, caste, sex.[33]
No MLA and MLC shall be liable to any proceeding in any court in
respect of anything said or any vote given by him in the legislature.
The
complex composition of J&K parliament aims to ensure a balanced
representation at two levels: firstly, between the two main
territorial-administrative units and, secondly, between the urban and
rural populations of the State. It is worth noting that several LC seats
are reserved for representatives from some of the most remote and
undeveloped areas of the State.[34] However, the present arrangement has been criticised on various grounds.[35] As early as in the 1980s, the Wazir Commission[36]
recommended that based on topography, geographical compactness,
development level, means of communication and population distribution,
Jammu should have more districts (thus more MLAs) than Kashmir. One may
reasonably assume that the non-implementation of such a solution has led
to an increasing dissatisfaction in Jammu towards the arguably
Kashmir-centric leadership of the State.
The
High Court of J&K consists of a Chief Justice and several judges
who hold office until the age of 62. They are appointed by the Indian
president after consultation with the Chief Justice of India, the
governor of J&K, and the Chief Justice of the High Court in the
case of appointment of a judge other than the Chief Justice (Section 93 and 95 J&KC). The High Court is composed of permanent and additional judges.[37]
The High Court sits in Srinagar (the summer capital) from May to
October. From November to April, it shifts to Jammu (the winter
capital). However, court sections of both the Jammu and Srinagar
branches of the High Court function throughout the year. As the main
judicial authority of the State, it exercises the control over all lower
level courts in J&K and it has the power to transfer cases to
itself from subordinate courts concerning the interpretation of the
J&K Constitution or the Indian Constitution (Section 103-105 J&KC).
The
Indian Constitution establishes a single integrated judicial system.
The Supreme Court of India is the highest court in the hierarchy of
Indian judiciary and has original, appellate and advisory jurisdiction.[38]
Nowadays, the provisions of the Indian Constitution regarding the
jurisdiction of the Supreme Court are applicable to J&K as well,
with several exceptions and modifications.[39]
It is worth noting that, initially, the CO of 1950 granted the Supreme
Court only appellate jurisdiction in relation to the State but the CO of
1954 (with the subsequent amendments) extended the jurisdiction of the
Supreme Court.
Larson (2001) rightly points out that India is a
secular state in a religious society and its legal system therefore
faces a double challenge: on one hand, to ensure an equal treatment for
all citizens and, on the other hand, to be responsive to the various
religious communities. The Indian case shows very well the tension
between legal universalism and legal pluralism. While the former treats
the individuals as basic units of the society with uniform rights and
obligations, the latter focuses on groups as the basic units, the
building blocks of the society and state (Rudolph–Rudolph 2001: 36-37).
Article 25 of the Indian Constitution guarantees the freedom of
conscience and free profession, practice and propagation of religion,
and according to Article 44, “[t]he State shall endeavour to secure for
the citizens a uniform civil code throughout the territory of India.”
The issue of adopting a uniform code has been always highly sensitive,
and this goal has not been achieved so far. Thus, legal pluralism
remains one of the features of Indian juridical system. Hindus, Muslims,
Buddhists, Sikhs, Christians and other communities continue to use
different systems of ‘personal law’ regarding marriage, divorce, wills,
inheritance, succession, etc. However, the personal law is interpreted
and applied by the secular courts. Sharia courts have no constitutional
or legal authority but their judgments may have a strong impact in
J&K, the only Muslim-majority Indian State.[40]
It is particularly
remarkable how complex and confusing the present legal arrangements
between the Union and J&K are. One may reasonably argue that the
numerous constitutional amendments created a kind of juridical
labyrinth. For Lavakare (2005: 31-32) “it is not readily known as to
exactly how many Acts of Parliament are not applicable to Jammu &
Kashmir State and which are the really important among those.” It is
difficult to say what the total number of modifications of the Indian
constitutional provisions in their application to J&K is.[41]
According
to Section 5 of the J&K Constitution, the legislative and executive
powers of the State extend to all matters except those with respect to
which the Indian parliament has power to make laws for the State under
the provisions of the Indian Constitution. The distribution of
legislative and executive powers between the Union and the states is
illustrative for the specificity of the Indian federal system with its
strong unitary bias. Article 246 of the Indian Constitution provides for
a division of legislative powers in three lists, based on principles of
exclusivity and concurrency:
As
Singh and Saxena (2011: 171) point out, more than half a century after
the adoption of the Indian Constitution, the State List has lost several
subjects to the Union and Concurrent Lists. As a matter of fact,
“[b]etween 1950-2001, a total of 27 changes have been brought about by
constitutional amendments: 9 in the Union List, 11 in the State List,
and 7 in the Concurrent List.” It is particularly remarkable that 94 of
the original 97 entries in the Union List were made applicable to
J&K by 1994 (Noorani 2011: 13-14). Moreover, the State Autonomy
Committee (2000: 8) argues that “26 entries in the Concurrent List have
also been applied [to J&K], 6 more with modifications.” This
argument deserves particular consideration, and a short discussion of
the constitutional developments in a historical perspective is helpful
for a better understanding of the J&K autonomy erosion process.
Let
us remember that when the Indian Constitution came into force, Article
370 laid down the principle that J&K has competence over all issues
except defence, foreign affairs and communications. If other
constitutional provisions and other Union powers were to be made
applicable in J&K, the prior concurrence of the State government and
the approval of the State’s Constituent Assembly were required.[46]
The State Autonomy Committee (2000: 30) argues that according to the
wording of Article 370, the J&K government’s authority to give the
concurrence lasted only as long as the State’s Constituent Assembly was
convened. It was an interim power and as soon as the J&K Constituent
Assembly met, the State government could not give its own concurrence.
Moreover, the State government would not have the right to give its
concurrence for the extension of constitutional provisions and Union
powers applicable in J&K after the Constituent Assembly finished its
work and was dissolved. Such an interpretation of Article 370 calls
into question the legality of the subsequent progressive reduction of
the autonomous powers of the State through Presidential Orders. The
J&K Constituent Assembly was dissolved in 1957 but successive State
governments gave their assent for a series of constitutional amendments
that curbed the autonomy with the blessing of the Supreme Court of
India.[47]
Initially,
the constitutional relationship between the State and the Union was
shaped by the CO of 1950 that enumerated in its First Schedule the
matters included in the Union List with regard to which the Union could
make laws for the State.[48]
Moreover, the CO of 1950 specified in its Second Schedule what other
constitutional provisions shall apply in relation to J&K subject to
several exceptions and modifications.[49]
The CO of 1950 was abrogated by the CO of 1954 which has remained one
of the basic relevant pieces of legislation for the Union-State
relations. It marked the beginning of the encroachment of State
legislative powers by widening those of the Union. As a matter of fact,
the CO of 1954 gave the Indian parliament the power to make laws for
J&K in regards to nearly all matters in the Union List (with some
exceptions and modifications) and significantly extended the number of
Indian Constitution’s provisions which are applicable to J&K (again
with several exceptions and modifications).[50]
The
Union parliament enjoys legislative competence over matters which are
not enumerated in the Concurrent and State Lists. These are residuary
powers that stem from Article 248 of the Indian Constitution.[51]
However, the J&K Constitution lays down the principle that the
legislative power of the State extends to all matters except those with
respect to which the Union parliament has power to make laws for the
State (Section 5 J&KC).
Article 248 of the Indian Constitution was made applicable to J&K[52]
in a modified version, guaranteeing the power of Indian parliament to
make laws dealing with the prevention of terrorism and the activities
directed against the sovereignty and territorial integrity of India, as
well as regarding several types of taxes. It is worth noting that the
legislative powers of the Union can be extended to subjects enumerated
in the State List under special situations: e.g. national interest
(Article 249 IC), proclamation of emergency (Article
250 IC), agreement between two or more states
(Article 252 IC), implementation of international
treaties (Article 253 IC), failure of constitutional
machinery in a state (Article 356 IC). These
provisions of the Indian Constitution were not applicable to the State
under the CO of 1950. However, the subsequent application of (modified
versions of) Articles 248 and 249 of the Indian Constitution to J&K
brought the residuary powers into a grey area and constitutional law
experts have differing opinions in this regard. Whereas for Anand (2004:
133) the residuary powers still belong to the J&K legislature,
Noorani (2011: 20) argues that the Union has acquired residuary powers
because the Indian parliament can legislate on matters “not mentioned in
the Union List and Concurrent List” as laid down in a Presidential
Order of 1986[53]
which made applicable a modified version of Article 249 to J&K. A
decade earlier, the State Autonomy Committee (2000: 69) followed the
same line of reasoning when it pointed out that the application of a
modified version of Article 250 to J&K which gives the Union
parliament the right to make laws for the State in respect of “matters
not enumerated in the Union List” may cover “areas which are part of
residuary power of legislation or strictly powers of legislature of the
State”.
Article 254 of the Indian Constitution which is currently
applicable to J&K lays down the mechanism for resolution of conflict
between State-made law and Union-made law. In such cases, the Union legislature prevails over the State legislature, in principle.
If any provision of a law made by the State legislature (i.e. Law A) is
repugnant to any provision of a law made by the Indian parliament (i.e.
Law B) in its field of competence, before or after the adoption of Law
A, then Law B prevails, and Law A shall be void to the extent of the
repugnancy. The same principle applies in case of any provision of a law
made by the State legislature being repugnant to any provision of an
existing law with respect to one of the matters enumerated in the
Concurrent List (Article 254 (1) IC). An
exception to the above rule occurs under the following necessary
conditions: (i) the State law deals with matters enumerated in the
Concurrent List, and it contains provisions inconsistent with an earlier
law made by the Indian parliament or an existing law with respect to
that matter; (ii) the State law has been reserved for the consent of the
president and received his or her assent. In such cases, the State law
prevails. However, the Indian parliament can override such State law
through subsequent legislation (Article 254 (2) IC).
In several cases, the Supreme Court of India has examined issues
related to this ‘doctrine of repugnancy’ which is meant to resolve
disputes arising from the inconsistency between laws made by states and
the Union.[54]
6.2. Distribution of Executive Powers
According
to Article 73 of the Indian Constitution, the executive power of the
Union covers all matters with respect to which the Indian parliament can
make laws. The Indian government has the power to enter into any treaty
or agreement but Article 253 of the Indian Constitution requires that
the Union parliament passes a law for giving effect to such treaty of
agreement. Article 253 applies to J&K as modified by CO of 1954
(with subsequent amendments) under the condition that no decision
affecting the disposition of the State shall be made by the Indian
government without the consent of the State government. Moreover, no
proclamation of emergency made by the president under Article 352 of the
Indian Constitution on the ground of internal disturbance shall have
effect in J&K, without the concurrence of the State government. The
Union has no power to make a proclamation of financial emergency with
respect to the J&K under Article 360 of Indian Constitution.
However, the executive power of the Union extends to giving J&K
directions which the Indian government deems necessary to avoid a
situation in which the exercise of the State’s executive power may
impede or prejudice the exercise of the executive power of the Union.
The instructions given by the Union to the State may also regard
measures concerning the construction or maintenance of any means of
communication, and measures to be taken for the protection of the
railways within the State (Article 257 IC). Article 312 of the Constitution regarding All India Services[55] is applicable to J&K.
The
executive power of J&K shall be so exercised as to ensure
compliance with the laws made by the Indian parliament (and any existing
laws which apply in the State), and not to impede or prejudice the
exercise of the executive power of the Union. In the exercise of its
executive power J&K shall facilitate the Union’s discharge of its
duties and responsibilities under the Constitution in relation to the
State.[56]
The Indian president may entrust either conditionally or
unconditionally to the State government or to its officers functions in
relation to any matter to which the executive power of the Union
extends. This procedure requires the consent of the J&K government.
In such case, the Indian government will pay to the State any extra
costs of administration incurred by the State in connection with the
exercise of those powers. The other way around, the governor of the
State may, with the consent of the Indian government, entrust either
conditionally or unconditionally to that government or to its officers
functions in relation to any matter to which the executive power of the
State extends (Articles 258 (1), (3) and 258A IC).
Part XII of the Indian
Constitution dealing with financial issues is applicable to J&K with
few exception and modifications, and the Comptroller and
Auditor-General of India has jurisdiction over the State.[57]
However, the Union has no power to make a proclamation of financial
emergency with respect to the J&K under Article 360 of Indian
Constitution. The exclusion of J&K from the application of Article
360 means that the Indian president cannot give directions to that State
to observe certain fiscal requirements deemed necessary when its
financial stability is threatened. Whereas “this arrangement has been
made in the view of the special circumstances of the State”, it may be
argued that “the situation seems unreasonable [and] hardly justifiable”
because J&K “shares in the revenues of the Union and gets
grants-in-aid” (Anand 2004: 154).
The financial arrangements
between the Union and J&K are based on three main principles laid
down by the Indian Constitution. Firstly, no tax shall be levied or
collected except by authority of law (Article 265 IC and Section 114 J&KC). Secondly,
the property of the Union is exempted from State taxation and the
property and the income of the State is exempted from Union taxation (Articles 285 and
289 IC).
Thirdly, the taxation power of the State is limited in several specific
cases. No State law shall impose or authorise the imposition of a tax
on the sale or purchase of goods where such sale or purchase takes place
outside the State or in the course of the import or export of the goods
into or out of the territory of India. The aim is to avoid multiple
taxation. A State law that imposes or authorises the imposition of a tax
on the sale or purchase of goods declared by Union law to be of special
importance in inter-state trade or commerce is subject to restrictions
and conditions stipulated by the Union law (Article 286 (1) and (3) IC). Furthermore,
no State law shall impose or authorise the imposition of a tax on the
consumption or sale of electricity consumed by the Indian government, or
sold to it for consumption (Article 287 IC). This
also applies to taxes in respect to any water or electricity stored,
generated, consumed, distributed or sold by any authority established by
Union Law for regulating or developing any inter-state river or
river-valley (Article 288 IC).
The
distribution of income from taxation between the Centre and J&K
follows a general rule whereby the Union and the states retain the
proceeds from taxes levied on matters that fall under their respective
competences. However, the Indian Constitution lays down some exceptions
that also apply to J&K: (i) duties levied by the Union but collected
and appropriated by the states,[58] (ii) taxes levied and collected by the Union but assigned to the states[59] and (iii) taxes levied and collected by the Union and distributed between the Union and the states.[60]
It
is worth noting that J&K is one of the ‘special category states’
which enjoy preferential treatment from the Union, as its economic
performance is negatively affected by “remoteness and poor connectivity,
[…] inhospitable terrain, vulnerability to natural disasters, a weak
resource base, poor infrastructure, shallow markets and most importantly
a law and order situation threatened by militancy” (PHD Research Bureau
2011: 18). These particular conditions “have resulted in low economic
activity, low employment and low‐income generation” (Ibid.).
Consequently, the State is not able to generate sufficient revenue from
its own resources and depends on financial support from the Union to
meet even its routine administrative expenditures (Marwah 2007: 11).
J&K has four sources of revenue (Planning Commission 2003: 354): (i)
the tax revenue,[61] (ii) the non-tax revenue,[62] (iii) the grant-in-aid from the Union government,[63]
and (iv) the State’s share of Union taxes and duties. The J&K
government has its own Finance Department, headed by a Minister of
Finance. This institution prepares a State budget which must be approved
by the State legislature. It comprises three parts: (i) the
Consolidated Fund, (ii) the Public Account and (iii) the Contingency
Fund.[64]
The
J&K government offers a set of incentives to those interested in
investing in the State. Illustrative examples in this regard are the
exemption in excise duty for ten years, an income tax holiday of five
years, as well as various subsidies provided with the aim to facilitate
industrialisation (PHD Research Bureau 2011: 16). However, few will
dispute the claim that the financial situation of J&K is directly
linked to security issues and that the consolidation of peace and order
is an absolute prerequisite for further economic development.
Singh and Misra (2012)
rightly argue that the role of the Union and the states as envisaged in
the Indian Constitution more than 60 years ago is challenged by new
socio-political-economic realities. The results of the 2009 Indian
general elections confirm the trend towards the ‘regionalization of
politics’ (Jaffrelot and Verniers 2009) meaning the increasing fragmentation
of the political scene and the upsurge of regional parties. Moreover,
“with the advent of coalition politics, the Centre-State relationship
started coming under considerable strain as different political parties
assumed power at the Centre and in different States” (Singh and Misra 2012:
4). Indeed, Hardgrave and Kochanek (2008: 150-151) point out that
“[u]ntil 1967 the bargaining process of Center-States relations took
place primarily within the framework of the dominant Congress Party”,
but its gradual loss of hegemony gave more and more weight to negations
within official bodies like the National Development Council which dealt
with all issues involving economic planning and the Conference of Chief
Ministers which “handled non-planning political issues requiring
national uniformity, coordination, and Center-State cooperation”.
In 2007, the Indian government set up a Commission on Centre-State Relations known as the ‘Punchhi Commission’.[65]
The mandate of this body was multifaceted: to review the working of the
existing arrangements between the Union and the states, various
pronouncements of the courts in regard to powers, functions and
responsibilities in all spheres including legislative relations,
administrative relations, the role of governors, emergency provisions,
financial relations, economic and social planning,
Panchayati Raj institutions,[66]
sharing of resources, and to recommend such changes or other measures
as may be appropriate. The report of the Punchhi Commission made public
in 2010 contains 282 recommendations. The two major constitutional
amendments proposed are related to the parliament and internal security
(Singh and Saxena 2011: 192). The commission recommends equal representation
for the states in the upper house in order to bring about a federal
balance in favour of smaller states, which are disadvantaged in both
chambers of the parliament as seats are allotted in proportion to the
size of each state’s population. As regards internal security, the
commission recommended the establishment of an over-arching structure at
the centre level called the National Counter-Terrorism Centre (NCTC).
This body was to coordinate all intelligence and investigation agencies
and other organisations and departments dealing with security issues. In
2012, the intention of the Union government to establish the NCTC in
pursuance of the report of the Punchhi Commission was met with
opposition by several states arguing that law and order is essentially a
State List subject and that the concept of NCTC goes against the
federal spirit of the Indian Constitution (Singh and Misra 2012: 7). The
chief minister of J&K has opposed the mandate of the NCTC to carry
out independent operations with the option to inform the state
governments after the operation has been launched and concluded. In his
view the NCTC may gather and analyse information unilaterally but it
should perform only joint operations with the state police (Tandon 5 May
2012).
The main issues regarding the Union-J&K relations are
discussed within the complex scheme of consultation and participation
mechanisms which includes the National Development Council, the Planning
Commission of India, and the Inter-State Council. The J&K chief
minister is a member of both the Inter-State Council and National
Development Council, and periodical consultations are taking place
between the J&K government and the Planning Commission. According to
Marwah (2007: 12-13), “de facto cooperative arrangements” are agreed to
by the Union and the State “in relation to the exercise of some
competencies, especially with regard to security and financial matters.”
As regarding the political representation of J&K at the Union
level, the State has four seats allocated in the
Rajya Sabha (Council of States) and six seats in the
Lok Sabha (House of the People). Whereas the members of
Rajya Sabha are elected by the State legislature,[67] the members
Lok Sabha are directly elected in the State on the basis of universal suffrage.[68]
9.1. Relations between Religious, Ethnic and Linguistic Communities
The
progressive erosion of the asymmetric autonomy arrangement laid down by
the Indian Constitution led to the deterioration of the political,
social and economic situation in J&K. The political discontent in
the Kashmir Valley increased constantly from the early 1980s, and the
allegedly rigged 1987 LA elections “reinforced the prevalent feeling
that Kashmiris would never get a fair deal through democratic means”
(Chowdhary and Rao 2003: 195). This event set the stage for the subsequent
mass anti-India protests, militancy and insurgency. In 1989, the demand
for autonomy was replaced by the calls for
azadi (freedom) of secessionist/irredentist
forces supported by a large part of the Muslim population of the Kashmir
Valley (Tremblay 2009: 934). Almost the entire Hindu minority
population in the Kashmir Valley (i.e. the Kashmiri Pandits) fled the
region after the outbreak of violence. During the early 1990s, “[b]oth
guerrilla leaders and ordinary Kashmiris associated their own cause with
the string of remarkable political turnabout in the Baltics, Germany,
and Afghanistan (i.e. the Soviet withdrawal). There was a sense that
somehow Kashmir must be next to taste freedom.” (Desmond 1995: 7).
However, after 1996 the Muslims from Kashmir Valley pursued their
short-term economic objectives by participating in State governance
through elections “while continuing to express long-term demands for
azadi outside the institutional framework”
(Tremblay 2009: 925). This brings us to the question of political and
economic aspirations of the other communities living in J&K. As
Behera (2006: 104) rightly underlines, each of them “is struggling to
nurture its sociocultural identity, find avenues of social and economic
development, and create its own political space”. In the Kashmir Valley
the main demands are linked to the political sphere ranging from
azadi (with either a secessionist or an
irredentist aim) to a real autonomy and self-rule as originally
conceived, based on the special status enshrined in Article 370 of the
Indian Constitution. Kashmiri elites have rejected the interventions
from the Centre that curtailed the autonomy of the State, but “in
fighting against those integrative pressures, Kashmiris replicated
unitary power structures and thus alienated the people from Jammu and
Ladakh” (Ibid.: 105). Indeed, in these two regions, the
perceived dominance of Kashmiri Muslims in the political life of the
State and the inter-regional disparities induced a sense of resentment
against the policies of both the Union and the State. In the
Hindu-dominated areas of Jammu, nationalist organisations request the
abolition of Article 370 of the Indian Constitution, which guarantees
the special status of the State (Chowdhary 2009). At least a part of the
Hindu population of Jammu would be in favour of establishing a separate
state but the five Muslim-majority districts of Jammu oppose such an
idea. The demand for union territory status for Ladakh is near unanimous
in the Buddhist-dominated area of Leh. This aspiration is cross-cutting
not only party but also community lines because it is supported even by
the small local Muslim population. As the State allocates budgetary
financial resources for infrastructure development on the basis of
population size, it is clear that a territorially large but sparsely
populated region like Ladakh is disadvantaged. However, the Shia
Muslim-dominated district in Kargil does not want union territory status
for Ladakh, as those in Buddhist-dominated Leh do. These small Muslims
communities argue that granting such a status to Ladakh or
establishing a separate State in Jammu will force them, much against
their grain, to cast their lot with the Kashmir Valley. Should that
happen, the minorities in these districts, too, fear that they will face
another partition trauma (Padgaonkar
et al. 2011: 35-36).
Indeed, at the
sub-regional level, some communities have their own set of grievances
rooted in fears about discrimination by another community. This leads to
increasing communal polarisation which has a negative impact within the
three regions as well as between them. “The Muslim and Hindu majority
districts of Jammu, for example, are steadily drawing apart rather than
coming together; similarly, the Muslim and Buddhist districts of Ladakh
are becoming increasingly distant, even acrimonious” (Ibid.: 20). The polarisation of the society along communal lines reached a peak in 2008 during the Amarnath Shrine controversy.[69]
The LA elections scheduled in November 2008 were held without major
incidents. Based on the election results, Chowdhary (2009) argues that
the initial ‘regional chauvinism’ triggered by the Amarnath land
transfer controversy turned into a communal conflict which has carved
new political constituencies based on religion. The fact of the matter
surely is that inter-community relations may be deeply affected by
apparently insignificant events, and that the political divide may
easily shift from the regional level to the communal level.
9.2. Security and Human Rights Situation
The
Indian military and paramilitary troops deployed in J&K are
estimated at around 700,000. This means that J&K is one of the most
militarised areas on the planet. International non-governmental
organisations like Amnesty International and Human Rights Watch have
long maintained that Indian security forces are operating with impunity
in the State and called for impartial investigations of alleged human
rights violations. In December 2012, two non-governmental organisations
based in J&K released a report which documents 214 cases of human
rights violations committed by army and paramilitary personnel, J&K
police members and ‘government backed militants/associates’ (Imroz
et al. 2012: 7). The report denounces an
“institutional culture of moral, political and juridical impunity” and
accuses both the Union and the State authorities for failing to act even
when official documents “indicted the armed forces and the police by
providing reasonable, strong and convincing evidence on the role of the
alleged perpetrators in specific crimes” (Ibid.: 7-8).
Under
the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) no. 21
of 1990, the military personnel deployed in a “disturbed area” may
inter alia shoot “any person who is acting in
contravention of any law”, search and arrest without warrant any person
who has committed an offence or against whom “a reasonable suspicion
exists that he has committed or is about to commit” an offence.[70]
Moreover, the military forces enjoy a special immunity as no
prosecution, suit or other legal proceeding can be instituted, except
with the previous sanction of the Union government, against any person
in respect to anything done or purported to be done in exercise of the
powers conferred by the AFSPA.[71] Not even a single request for sanction for prosecution under the AFSPA
has been granted in the 22 years since the law entered into force (Imroz
et al. 2012: 231). This absolute impunity for
the army personnel is reflected by the high number of so called ‘fake
encounters’ meaning extrajudicial killings of civilians or suspect
insurgents. In the military reports, the victims appear as aggressors
who shot at the security forces and were then killed in self-defence. In
March 2012, the UN Special Rapporteur on extrajudicial, summary or
arbitrary executions urged India to repeal the AFSPA because “[i]t
clearly violates International Law. A number of UN treaty bodies have
pronounced it to be in violation of International Law as well” (India
Today, 31 March 2012).
In a landmark decision, the Constitution Bench of Supreme Court of India stressed in ShriRaghunatharao Ganpatrao vs Union of India
(1993: para. 108) that in view of the country’s enormous diversity
“India has one common citizenship and every citizen should feel that he
is Indian first irrespective of other basis.” Nevertheless, the State of
J&K grants a privileged status to its ‘permanent residents’. These
are according to Section 6 of the J&K Constitution citizens of India
who on 14 May 1954 were ‘state subjects’ of Class I or Class II[72]
or had until that day lawfully acquired immovable property in the State
as well as ordinary residence in it for not less than 10 years. In
spite of this constitutional definition, the State legislature has the
power to enlarge or restrict the category of people regarded as
‘permanent residents’ (Section 8 J&KC). However,
any law which defines or alters the definition of ‘permanent residents’
or confers, regulates or modifies special rights or privileges requires
the approval of two-thirds of the total membership of each house of the
legislature.
The above-mentioned term ‘state subject’ indicates
the historical and pre-democratic origin of privileges for the local
population. As early as in the late 1920s the people of the princely
state of Kashmir and Jammu had campaigned for their protection against
marginalisation and exploitation by people from richer neighbouring
areas, above all the Punjab. In response to growing pressure, the
Maharaja Hari Singh granted certain privileges to his ‘state subjects’
through notifications promulgated in 1927 and 1932 (Anand 2004: 187).
These legal acts remained in force even for some time after
decolonisation, as the CO of 1950 did not make Part II of the Indian
Constitution dealing with citizenship applicable to J&K. However,
the CO of 1954 did exactly that, thereby turning ‘state subjects’ of
J&K into citizens of India. In exchange however, these people, now
called in a less ambiguous manner ‘permanent residents’, were endowed
with special rights.
Article 35A was inserted into the Constitution of India for this purpose[73],
declaring that existing and future laws in J&K, which define
‘permanent residents’ and confer special rights upon them regarding
employment under the State government, scholarships and other aid
provided by the State government, acquisition of immovable property and
settlement in J&K shall be valid. Thus, it was explicitly clarified
that the privileged status of ‘permanent residents’ is in line with the
Constitution of India in spite of its fundamental rights guarantees for
all Indian citizens, such as the right to non-discrimination on grounds
of birthplace (Article 15 (1) IC), to equality of employment opportunity (Article 16 (1) IC), to property (Article 19 (1) (f) IC) and to settle in any part of India (Article 19 (1) (e) IC).
J&K has made use of this empowerment both in special legislation
and in its Constitution itself. The latter restricts to ‘permanent
residents,’ for example, the right to work and to certain social
benefits (Section 19 (a) and (d) J&KC), to free education up to the university level (Section 20 (a) J&KC), qualification for membership in the legislature (Section 51 (a) J&KC), disqualification for it (Section 69 (1) (d) J&KC) and the right to vote in elections to the lower house of the J&K parliament (Section 140 J&KC).
A
particularly delicate question concerned the legal consequences of
marriages between daughters of ‘permanent residents’ and non-residents.
The relevant Note III of the Notification of 1927 has been interpreted
before and after the J&K Constitution came into force in such a way
that women would in this case lose their privileged status. At first
even the High Court of J&K upheld this interpretation in
Prakash v. Mst. Shahni (1965), in which it
did not see any discrimination on the ground of sex. Only after the
issue had been addressed in a number of writ petitions, did the High
Court of J&K change its position and rule in the case
State of Jammu and Kashmir v. Dr Susheela Sawhney (2002)
that a woman would not lose her status as ‘permanent resident’ in the
event of such a marriage. The lower house of the J&K parliament
reacted to this decision by passing the Jammu and Kashmir Permanent
Residents Disqualification Bill in an attempt to restore the
status quo ante (Ashai 2010). Following
fierce debates between politicians and the strong resistance of human
rights activists, the so-called ‘Disqualification Bill’ failed to be
approved by the upper house of the State legislative body. Its session
on this initiative was adjourned for an indefinite time without the bill
being put to vote. In 2012, the current government of J&K confirmed
that it does not intend to reintroduce the bill in the parliament.
A precondition for a positive impact of the
autonomy arrangement would be that all parties involved recognize the
complexity of the conflict. In reality however, there prevails a common
misperception to portray the conflict in this state in a simplified
manner as originating only from the fact that a predominantly Muslim
population had its destiny determined by a Hindu ruler in 1947 and as
being fought since then bilaterally between India as state of residence
and Pakistan as kin-state of this Muslim community. In reality,
political claims vary greatly and Pakistan as an Islamic Republic by
official definition is only perceived as kin-state by parts of J&K’s
population, with great variation in opinion among even the Muslim
population. There are sharp divisions between those who demand accession
to Pakistan, others who call for independence, and a third group which
claims genuine autonomy within India. Most likely, the non-Muslim
population in Jammu, Ladakh and the Kashmiri Pandits, are overwhelmingly
in the latter group. Among the Muslim population there are some who
demand real autonomy within India, while others favour accession to
Pakistan. Still others, above all in the Valley, the centre of the
above-mentioned specific Kashmiri culture, seek independence (Bose 2003:
10-11; Behera 2006: 2). The failure to recognize the complexity of the
conflict, stemming from diverse identities, loyalties and political
claims, has so far inhibited a satisfying long-term solution. This is
epitomized by Article 370 of the Indian Constitution of 1950, according
to which the status of J&K is regulated by several “temporary
provisions”.
Compared to other autonomy arrangements currently in
place, there are probably not many which are characterised by such a
tremendous gap between the law in the books and law in action as in the
case of J&K. The initial arrangement had endowed this state with
far-reaching autonomy in both constitutional and legislative terms. It
was entitled to draft its own Constitution and merely relinquished a few
explicitly listed legislative competences. However, in the course of
six decades, the autonomy of J&K has been gradually and deliberately
eroded through Presidential Orders with explicit approval of the
Supreme Court of India.
Why has such an erosion process taken
place? Apart from contextual factors, the intrinsic weaknesses of the
autonomy arrangement are also relevant. The most important reason why
the self-governance system has proved ineffective is its failure to
properly address J&K’s cultural diversity by enshrining autonomy at
different levels of government in a more complex and nuanced
arrangement. The exceptional procedure of how Article 370 was
formulated, that is through negotiations between Nehru and Sheik
Abdullah, is emblematic of the interests which this provision reflects.
People of Jammu and Ladakh and, in general, the minority communities
within J&K felt that their interests had been neglected in this
bilateral bargain and that autonomy would only serve to cement the
domination of the Kashmiri Muslims in legal terms. The internal
opposition against the introduction of Article 370 clearly marked a
turning point. From then onwards, relations between J&K internal
minorities and the State government, as well as between the latter and
the Union government, have increasingly soured. In addition to all this,
the international context changed for the worse as the rapprochement
between Pakistan and the West alienated India. The removal of Sheik
Abdullah, for Kashmiris the very symbol of autonomy, from the office of
J&K prime minister and the subsequent State puppet governments then
enabled the Union to gradually curtail the autonomy.
While the
impact of the autonomy arrangement in the last decades has certainly
been a negative one, there have been some signs which may foreshadow
more positive developments in the future. Firstly, in the international
arena, the end of the Cold War has reduced the geopolitical interests at
stake. Together with the fear of a nuclear war, this has contributed to
an emerging consensus that the conflict can only be resolved peacefully
(Behera 2006: 276). Secondly, in relations between India and Pakistan,
the bilateral approach towards a solution, which Sheik Abdullah had
demanded from Nehru in vain during the early years of autonomy, has been
reinforced by both sides. Regular talks focusing on the Four-Point
formula,[74]
specific confidence-building measures such as bus connections and the
permission for divided families to meet, as well as Pakistan’s shift
from demanding a plebiscite to “maximum self-governance” under the
Musharraf government (Reddy 2005) have resulted in a slight
rapprochement between the two rivalling neighbours. Nevertheless, India
and Pakistan still tend to make the possession of Kashmir a cornerstone
of their respective self-perception, i.e. the secular state on the one
hand and the homeland of all Muslims of the subcontinent on the other
(Bose 2003: 8). To some extent, the conflict is therefore still
overloaded with ideology that makes it an immutable zero-sum test for
both sides. Thirdly, in J&K itself, the return to democratic
politics in 2002 is certainly a positive sign. However, violence
continues to this day and an autonomy arrangement that is inclusive of
different autonomy claims of different groups at different levels is
still being sought. The fact of the matter is that the distinctive
status of J&K within the Union and its ethnic, linguistic and
religious diversity requires the establishment of a two-level autonomy
model: on one hand, the reinforcement of the State autonomy within
India’s asymmetric federalism and, on the other hand, the internal
autonomy of Jammu, Kashmir and Ladakh within J&K. The establishment
of a network of devolved institutions with legislative, administrative
and financial powers at all levels of governance – region, district and
Panchayat - could give voice and offer
solutions for the different aspirations of all regions and ethnic,
linguistic and religious communities. However, the idea of an internal
devolution of powers enjoys virtually no support in the Kashmir Valley
and it also raises fears regarding the division of the State along
communal lines.
It is obvious that the complexity of the J&K
case requires a coordinated set of measures that could tackle the
symbiotic relationship between the political and governance related
issues. Indeed, "[e]ven if the question of Jammu and Kashmir’s
status is resolved at the political level, no resolution will be felt on
the ground without improvement in governance. Conversely, improvements
in governance are stymied by the lack of political resolution because
morale within the services is and will remain low as long as there is
ambiguity on the State’s relation to the Union" (Padgaonkar et al. 2011: 91).
This set of measures would deal with a wide range of political, cultural and economic concerns including
inter alia the special status of J&K
within the Union, the internal autonomy of the regions within the State,
the protection and preservation of the J&K ethnic, linguistic and
religious diversity, and equal access to resources by the entire
population. The process of finding a long lasting solution in the case
of J&K may start with a symbolic change: the replacement of the word
‘temporary’ in Article 370 of the Indian Constitution with ‘special’ in
order to assert the distinctive status of J&K within the Union of
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CO - Constitution (Application to Jammu and Kashmir) Order issued by Indian President
INC - Indian National Congress
J&K - State of Jammu and Kashmir
JKNPP - Jammu and Kashmir National Panthers Party
LAJK - Legislative Assembly of Jammu and Kashmir
LCJK - Legislative Council of Jammu and Kashmir
MLA - Member of Legislative Assembly
MLC - Member of Legislative Council
SASB - Shri Amarnath Shrine Board
Notes
Some parts of this study have been published in the following article: Sergiu Constantin and Karl Kössler, "Jammu and Kashmir: A case of eroded autonomy", in Salat Levente, Constantin Sergiu, Osipov Alexander, Székely István Gergő (eds.), Autonomy Arrangements around the World: A Collection of Well and Lesser Known Cases, Romanian Institute for Research on National Minorities, Cluj-Napoca, 2014, 113-156. Sections 1-4 and 10 were written by Karl Kössler, and sections 5-9 by
Sergiu Constantin. The conclusions were drawn up jointly by both
authors.
* Institute for Minority Rights, EURAC Research.
** Institute for Studies on Federalism and Regionalism, EURAC Research.
[1] Census Reports of India (2001). The results of the 2011 census concerning religious demographics are not yet available.
[2]
For the purpose of clarity, in this chapter we use ‘Union’ and ‘Centre’
for referring to the federal level. ‘State’ refers to the specific
federal unit of Jammu & Kashmir. Other federal units are referred to
as ‘states’ and ‘union territories’.
[3]
The others are Nagaland, Meghalaya and Mizoram in the North-East, with a
Christian majority, and Punjab, with a Sikh majority (Bhattacharyya
2010: 28).
[4]
The State of Jammu and Kashmir comprises three historical regions (i.e.
Jammu, Kashmir and Ladakh) but only two administrative divisions, i.e.
Jammu and Kashmir. Jammu is made up of Kathua, Samba, Jammu, Rajouri,
Reasi, Udhampur, Ramban, Doda, Kishtwar and Poonch districts. Kashmir
consists of Anantnag, Kulgam, Pulwama, Shopian, Budgam, Srinagar,
Ganderbal, Bandipora, Baramulla, Kupwara, Leh and Kargil districts. The
historical region of Ladakh covers the Leh and Kargil districts.
[5] These are Kashmiri, Dogri, Balti, Dardi, Punjabi, Pahari and Ladakhi.
[6]
Moreover, the states and union territories are grouped into six
overarching zones, each of which has an advisory council tasked with
fostering cooperation between these neighbouring subnational entities.
These are the Northern, North-Eastern, North-Central, Eastern, Western
and Southern Zonal Council, respectively. However, these do not have a
legally recognised status as a genuine government level. The states and
union territories therefore constitute the first of the five levels of
government.
[7]
Indian Constitution, Article 352 (i.e. a threat to the security of
India or any part of its territory caused by war, external aggression or
armed rebellion).
[8] Ibid., Article 356 (i.e. the breakdown of the constitutional machinery in a state).
[9] For details see below sections 4.1. and 6.2.
[10] The US Supreme Court in
Texas v. White, 74 US (7 Wall.) 700 (1869).
[11] Instead of ‘federation’, the Constituent Assembly chose ‘Union of States’. See Indian Constitution, Article 1.
[12]
The other four essential elements are supremacy of the Constitution,
republican and democratic form of government, secular character of the
Constitution and separation of powers between the legislature, executive
and judiciary (Majeed 2005: 186-87). This ‘basic structure doctrine’
was later reinforced in
Indira Nehru Gandhi v. Raj Narain (1975),
Minerva Mills Ltd. v. Union of India (1980) and other decisions.
[13]
The union territories are the Andaman and Nicobar Islands, Chandigarh,
Dadra and Nagar Haveli, Daman and Diu, Lakshadweep, Pondicherry and
National Capital Territory of Delhi. Among them the latter two have a
special status through own institutions, i.e. popularly elected
legislative assemblies and executive councils, and more, albeit still
very limited, powers.
[14]
Constitution (Application to Jammu and Kashmir) Order no. 10 of 26
January 1950 (hereinafter CO of 1950). It was abrogated and replaced by
Constitution (Application to Jammu and Kashmir) Order no. 48 of 14 May
1954 (hereinafter CO of 1954).
[15]
“If the concurrence of the Government of the State […] be given before
the Constituent Assembly for the purpose of framing the Constitution of
the State is convened, it shall be placed before such Assembly for such
decision as it may take thereon.”
[16] Nehru on 27 November 1963, while addressing the Indian parliament, quoted in Noorani (2011: 2).
[17] The texts of all 47 Presidential Orders from 1954 to 1994 are printed in Noorani (2011: 336-387). In the meantime, a 48th Order was issued.
[18] Constitution (Application to Jammu and Kashmir) Third Amendment Order no. 71 of 21 November 1964.
[19] Constitution (Application to Jammu and Kashmir) Second Amendment Order no. 101 of 23 July 1975.
[20] However, the Supreme Court of India upheld the principle of separation of powers. In the case
Asif Hameed v. State of Jammu & Kashmir
(1989: 9) the court underlined that “[l]egislature, executive and
judiciary have to function within their own spheres demarcated under the
Constitution. No organ can usurp the functions assigned to another.”
[21] Constitution of Jammu and Kashmir (Sixth Amendment) Act of 10 April 1965.
[22] The Supreme Court held in the case
Mohammad Maqbool Damnoo v. State of Jammu and Kashmir (1972) that there is no difference between an elected
Sadr-e-Riyasat and an appointed governor, as
the change “does not bring about any alteration either in the framework
or the fundamentals of the Jammu and Kashmir Constitution.” In 1996, the
J&K government set up a State Autonomy Committee with the mandate
to examine and recommend measures for the restoration of J&K
autonomy and the development of a better relationship between the State
and the Union. The State Autonomy Committee (2000: 94) argues that the
1965 amendment “brings about fundamental changes in the core foundation
of the Constitution of the State” and that through this radical change
“the basic character of the Constitution was infringed”.
[23]
Sections 36 and 38. Section 37 (2) J&KC specifies that a
minister who for a period of six consecutive months is not a member of
either house of the legislative body shall upon the expiry of that
period cease to be a minister.
[24]
It is worth nothing that Article 356 of the Indian Constitution
relating to suspension of constitutional machinery was extended to the
State in 1964. Therefore, in case of failure of the constitutional
machinery as set up by the Constitution of J&K, the ‘President’s
Rule’ under Article 356 of the Indian Constitution may be applied in
J&K as in the case of other states of the Union.
[25]
According to Article 366 (24) of the Indian Constitution, ‘Scheduled
Castes’ means the castes, races or tribes or part of, or groups within,
castes, races, or tribes which are for the purposes of the Constitution
of India deemed to be Scheduled Castes in relation to the states under
the provisions of Article 341 of the Indian Constitution. Article 341
stipulates that the Indian president may specify in a public
notification, with respect to any state or union territory, the castes,
races or tribes which, for the purposes of Constitution, shall be deemed
to be Scheduled Castes in relation to that state or union territory.
Subsequently, the parliament may by law include in or exclude from the
list of Scheduled Castes specified in such notification any caste, race
or tribe.
[26]
The Jammu and Kashmir National Panthers Party (JKNPP), a recognised
political party in the State, has challenged the amendment of the Jammu
and Kashmir Representation of the People Act before the High Court of
J&K. However, the court held that the readjustment of the
territorial constituencies after each census was neither a mandate of
the fundamental law, nor the essence of democracy and rejected the
complaint. The Supreme Court of India dismissed the JKNPP’s appeal. The
court held that a demand for a “uniform value of one’s voting right
through the process of delimitation, disregarding the statutory and
constitutional dispensation based on historical reasons is not a
justiciable right” (J&K National Panthers Party v. Union of India 2011: para. 24).
[27] Jammu and Kashmir Representation of the People Act of 1957 (as subsequently amended), Article 4 (2) (a).
[28]
In summer 2010 mass protests erupted in J&K, and the violent
confrontations between protesters and security forces claimed the lives
of more than 100 people. The Indian government announced a set of
measures designed to defuse tension in the State, and in October 2010
appointed a Group of Interlocutors with the mandate to hold wide-ranging
consultations at all levels of J&K society. They were to identify
the political contours of a solution and the roadmap towards it. During
2011, the Group of Interlocutors held consultations in all 22 districts
of J&K, met the leadership of both large and small, national and
regional political parties and received over 700 delegations of
community representatives (e.g. clerics, traders and workers’
associations, women’s groups, media and welfare organisations). The
Report of the Group of Interlocutors (i.e. D. Padgaonkar, R. Kumar and
M. M. Ansari) was submitted to the Indian authorities in October 2011
and was made public in May 2012. As of June 2014, the report is still
pending with the State government (Wani 2014).
[29]
Section 52 (1) of the Constitution of J&K, and Article 156 (1) of
the of the Jammu and Kashmir Representation of the People Act.
[30]
11 out of these 14 MLCs from the Jammu administrative division are
elected by the MLAs from amongst residents of Jammu who are not members
of the LA. At least one of these 11 MLCs shall be a resident of Doda
district and at least one of them shall be a resident of Poonch
district. Further, one MLC is elected by the members of municipal
council, town area committees and notified area committees in Jammu and
two MLCs are elected by the members of local self-government bodies in
Jammu.
[31]
Eleven out of these 14 MLCs from the Kashmir administrative division are
elected by the MLAs from amongst residents of Kashmir who are not
members of the LA. At least one of these 11 LMCs shall be a resident of
sub-district Leh (Ladakh) and at least one shall be a resident of
sub-district Kargil. Further, one MLC is elected by the members of
municipal council, town area committees and notified area committees in
the Kashmir province; two MLCs are elected by the members of local
self-government bodies in Kashmir.
[32]
Constitution of J&K, Section 51 (a) and Section 140, Jammu and
Kashmir Representation of the People Act, Article 12 (1) (b) and Article
23 (2).
[33] Jammu and Kashmir Representation of the People Act, Article 11 and Constitution of J&K, Section 139.
[34]
While Kargil and Leh are the least populated districts of the State,
Doda and Poonch are in the top three of the most backward districts of
J&K and are receiving financial support from the Backward Regions
Grant Fund. This is a programme launched in 2007 by the Indian
government with the aim to redress regional imbalances in the country’s
development. For details, see
http://panchayat.nic.in/brgf/ (accessed on 15 January 2016).
[35]
For example, one may argue that Kashmir Valley is over-represented in
the legislature when compared with Jammu and Ladakh and that present
delimitation favours the urban elites. From this point of view it is
necessary a new delimitation which would allocate more seats to the
remote and underdeveloped areas of the State and ensure a better
representation of the so-called ‘minorities within minorities’.
[36] The Wazir Commission was established in November 1981 with the aim to study
inter alia the rationalisation of territorial-administrative units. The Commission submitted its report in January 1984.
[37]
According to Section 100-A of the Constitution of J&K, additional
judges are appointed by the Indian president for a period of maximum two
years, in case of temporary increase in the business of the High Court
or arrears of work therein.
[38] For details, see
http://www.supremecourtofindia.nic.in/jurisdiction.htm (accessed on 15 January 2016).
[39]
For example, Articles 134A, 135, 139, 139A of the Indian Constitution
are not applicable to J&K. For details, see Appendix II of the
Indian Constitution, ‘Re-statement with reference to the present text of
the Constitution, of the exceptions and modifications subject to which
the Constitution applies to the State of Jammu and Kashmir’, 381-382.
[40]
A striking example seems to show that the J&K authorities may cave
to pressure from such unofficial courts. In October 2011, a self-styled
sharia court led by the J&K Grand Mufti summoned an Anglican priest
from Srinagar to answer to charges of blasphemy. Less than a month
later, the priest was arrested by the local police and charged under
Articles 153A and 295A of the J&K Penal Code. While Article 153A
pertains to “promoting enmity between different groups […] and doing
acts prejudicial to maintenance of harmony”, Article 295A has to do with
“deliberate and malicious acts, intended to outrage religious feelings
of any class by insulting its religion or religious beliefs”. The priest
was released on bail at the beginning of December 2011 but the All
India Christian Council accused the police of arresting him in order to
forestall an anti-government rising by Muslim extremists. In January
2012, the same self-styled sharia court ordered the expulsion of the
Anglican priest and several other Christian missionaries who, allegedly,
had lured Kashmiri Muslims to convert to Christianity (Ramachandran
2012). In February 2012, the J&K High Court issued an order that
halted the legal proceedings against the Anglican priest. However,
apparently he (and the other Christian missionaries) were compelled to
leave Kashmir due to security concerns.
[41]
Appendix II of the Indian Constitution contains a “Re-statement with
reference to the present text of the Constitution, of the exceptions and
modifications subject to which the Constitution applies to the State of
Jammu and Kashmir” but this long list contains only exceptions and
modifications “which have a practical significance”.
[42] Emphasis in the original.
[43] Indian Constitution, Article 246 (1) IC and Seventh Schedule.
[44] Ibid., Article 246 (3) and Seventh Schedule. Currently, the State List includes
inter alia police and public order, local
government, cultural institutions, public health, agriculture and land,
state elections, state taxes and duties, jurisdiction and powers of all
courts except the Supreme Court, with respect to any of the matters in
this List.
[45] Ibid., Article 246 (2) and Seventh Schedule. Currently, the Concurrent List includes
inter alia criminal law and criminal and
civil procedure, marriage and divorce, wills and successions, transfer
of property except agricultural land, bankruptcy and insolvency,
economic and social planning, employment and trade unions, education,
and printed media.
[46] Ibid., Article 370 (1) (b) (ii) and (2).
[47] It is worth noting, however, that in the case
Prem Nath Kaul v. State of Jammu and Kashmir (1959)
the Supreme Court held that “Constitution-makers attached great
importance to the final decision of the Constituent Assembly, and the
continuance of the exercise of powers conferred on the parliament and
the president by the relevant temporary provision of Article 370 (1) is
made conditional on the final approval by the said Constituent Assembly
in the said matters.” Yet, the Supreme Court held the opposite view in
the case
Sampat Prakash v. State of Jammu and Kashmir (1968).
The judges decided that Presidential Orders can be issued under Article
370 despite the fact that the Constituent Assembly was dissolved. Peer
and Rahman (2012: 73) rightly point out that it is “rather perplexing,
to note that although the only case which came before the Supreme Court
till then in relation to Article 370 was
Prem Nath Koul, the Court did not even consider or refer to it while deciding on
Sampat Prakash”. The Supreme Court also overlooked
Prem Nath Kaul as a legal precedent in the case
Mohammad Maqbool Damnoo v. State of Jammu and Kashmir (1972) in which it upheld the replacement of the elected
Sadr-e-Riyasat by an appointed governor. For
the court, the essential feature of Article 370 is the necessity of the
concurrence of the State government, not the Constituent Assembly
(Noorani, 2000).
[48]
For example, armed forces, atomic energy, diplomatic, consular and
trade representation, naturalisation and aliens, railways, airways,
shipping, post and telegraph, elections to parliament.
[49]
For example, the provisions of Part XVII of the Indian Constitution on
official language shall apply in relation to J&K “only in so far as
they relate to the official language of the Union and to proceedings in
the Supreme Court.”
[50]
For example, Part II (Citizenship), Part III (Fundamental Rights),
Articles from Part V (The Union), Part XI (Relations between the Union
and the States).
[51]
For example, according to Article 248 (2) of the Indian Constitution,
the Union has the power to make any law imposing a tax not mentioned in
either of those Lists.
[52]
A modified version of Article 248 of the Indian Constitution was made
applicable to J&K through Constitution (Application to Jammu and
Kashmir) Amendment Order no. 85 of 17 February 1969 and Constitution
(Application to Jammu and Kashmir) Second Amendment Order no. 93 of 6
May 1972.
[53] Constitution (Application to Jammu and Kashmir) Amendment Order no. 129 of 30 July 1986.
[54] For example, in the case
State of Jammu And Kashmir v. M. S. Farooqi And Others (1972)
the Supreme Court dealt with a matter of inconsistency between a
State-made law (i.e. Jammu and Kashmir Government Servants’ Prevention
of Corruption Commission Act) and a Union-made law (i.e. All India
Services Act). The respondent was a member of the Indian Police Service.
The Commission set up under the Jammu and Kashmir Government Servants
Prevention of Corruption Act started an investigation into a complaint
received against the respondent. He challenged the jurisdiction of the
Commission, and the J&K High Court allowed the petition, holding
that the members of an All India Service, serving in J&K, are
governed by the All India Services Act (and the rules made thereunder)
thus the State-made law was not applicable to them. The Supreme Court
dismissed the appeal of the State following the same line of reasoning:
the State law is repugnant to the provisions of the Union law and hence,
under Article 254 of Indian Constitution which is applicable to
J&K, the State law must give way to the Union law. For a detailed
discussion on the conflict between State-made law and Union-made law,
see also the case
M. Karunanidhi v. Union of India (1979).
[55]
The All India Services Act of 1951 provides that the Indian government
may make rules for regulating the recruitment and the conditions of
service of persons appointed to the All India Services. The All India
Services include the Indian Administrative Service, the Indian Police
Service and the Indian Forest Service.
[56] Article
256 (1) and (2) IC. Paragraph 2 was introduced by CO of 1954
(with subsequent amendments) and is applicable only in relation to
J&K: in particular, if so required by the Union, J&K shall
acquire or requisition property on behalf and at the expense of the
Union, or if the property belongs to the State, transfer it to the Union
on such terms as may be agreed or as may be determined by an arbitrator
appointed by the Chief Justice of India.
[57]
Their jurisdiction was extended to the State by Constitution
(Application to Jammu and Kashmir) Second Amendment Order 1958, which
made Entry 76 of Union List under the Indian Constitution applicable to
J&K.
[58] Indian Constitution, Article 268. These are stamp duties and duties of excise on medicinal and toilet preparations.
[59] Ibid., Article 269. These are taxes on the sale or purchase of goods and taxes on the consignment of goods.
[60] Ibid., Article 270. These are taxes on income other that agricultural income.
The Finance Commission of India makes recommendation to the Indian
president regarding the percentage of the net proceeds of income taxes
that shall be assigned to the states, the share of each state within the
divisible pool and the percentage of the net proceeds of income taxes
that shall be retained by the Union. For details, see Thirteenth Finance
Commission (2009).
[61]
The tax revenue is the most important for the budgeting exercise and
includes in order of higher revenue collections sales tax, excise, tax
on goods, tax on vehicles, stamp duty, electricity duty, tax on
passengers and land revenue. Besides, miscellaneous taxes in the shape
of tax on professions, trade, selling and employment, entertainment duty
and advertisement, road tax and tourist tax are charged.
[62]
The non-tax revenue is largely dependent on collection of fees from the
consumers on account of supply of goods and services like electric
energy, drinking water, irrigation facilities, exploitation of forest
wealth, charges of health services, mining, etc.
[63]
According to Article 275 of Indian Constitution, the Union parliament
has the authority to offer every year such financial support to the
states that are in need of assistance and different sums may be fixed
for different states. Moreover, the Union may give to the State
government pass-through grants that shall reach local bodies (e.g.
Panchayati Raj institutions) for carrying out
development and welfare schemes. Also the State government devolves
financial resources as grants-in-aid to
Panchayats following the recommendation of the State Finance Commission. In 2011, J&K established a State Finance Commission for
Panchayats and Municipalities which aims to review and improve the financial position of these local bodies.
[64] For details see the information published on the website of the Financial Department of J&K’s government at
http://jakfinance.nic.in/budget.htm (accessed on 15 January 2016).
[65]
Back in 1983, the Indian government established the so-called ‘Sarkaria
Commission’ with the mandate to examine and review the working of the
existing arrangements between the Union and the states in regard to
powers, functions and responsibilities in all spheres, recommending such
changes or other measures as may be appropriate. The report of Sarkaria
Commission published in 1988 contains 247 recommendations. The
appointment of another panel to deal with these issues 20 years after
the Sarkaria Commission submitted its report suggests that most of the
problems highlighted in 1988 have remained unsolved.
[66] According to Articles 243 and 243B of the Indian Constitution, the
Panchayats are institutions of self-government at the village, intermediate and district level. This system of governance is called
Panchayati Raj. The legislature of a state regulates by law the procedure for the election of the members of the
Panchayats and their competences. The
devolution of powers shall enable these bodies to play a major role in
the preparation and implementation of plans for economic development and
social justice. The
Panchayats are financed by
centrally-sponsored schemes and by the state governments on the
recommendation of the State Finance Commissions. The legislature of a
state may authorise a
Panchayat to levy, collect and appropriate taxes, duties, tolls and fees. The
Panchayats must have a certain number of reserved seats for Scheduled Castes and Scheduled Tribes, as well as for women.
[67] The
Rajya Sabha is the upper house of the Indian
parliament. It is a permanent body with not more than 250 members. It is
not subject to dissolution but one-third of its members retire every
two years. The term of office of a member of the
Rajya Sabha is six years from the date of election (or nomination). Members of the
Rajya Sabha are not elected by the people
directly but indirectly by the LAs of the various states. Every state is
allocated a certain number of members in the
Rajya Sabha. The representatives of a state in the
Rajya Sabha are elected by the MLAs of that
state in accordance with the system of proportional representation by
means of the single transferable vote. For details, see
http://rajyasabha.nic.in (accessed on 15 January 2016).
[68] The
Lok Sabha is the lower house of the Indian
parliament. It consists of a maximum of 552 members. Not more than 530
members are chosen by direct election from territorial constituencies in
the states. The elections take place every five years and are based on
the first-past-the-post electoral system. The total elective membership
is distributed among the states in such a way that the ratio between the
number of seats allotted to each state and the population of the state
is, so far as practicable, the same for all states. In addition, the
union territories are represented in the
Lok Sabha by not more than 20 members, and
not more than two members of the Anglo-Indian community may be nominated
by the President in the
Lok Sabha. For details, see
http://loksabha.nic.in (accessed on 15 January 2016).
[69]
Thousands of Hindu pilgrims travel every summer to the Amarnath caves
located in the Kashmir Valley to pay homage to Lord Shiva. The overall
organisation of the mass pilgrimage and the management of the shrine are
entrusted to the Shri Amarnath Shrine Board (SASB). In 2008, the State
government agreed to transfer 99 acres of forest land to the SASB for
the construction of housing facilities for the worshipers. This decision
triggered a strong negative response in the Kashmir Valley. Chowdhary
(2009) points out that the widespread opposition was based on the fear
of demographic change engineered by the government with the intention of
altering the Muslim-majority character of the State. Due to the
progressive deterioration of the security situation in the Kashmir
Valley, the State government stepped back and revoked the land transfer.
However, this led to the prompt mobilisation of the Hindu nationalists
in Jammu who considered the revocation a capitulation by the authorities
to the Muslim separatists and a direct attack on the religious
sentiments of their community. Law and order was re-established in Jammu
after the State government and Hindu nationalists groups reached a
compromise according to which the SASB is allowed to use the forest land
during the Amarnath pilgrimage, but the government retains ownership of
the land. In the Kashmir Valley, the agreement was perceived as a
capitulation rather than a compromise, triggering a new round of unrest
in the region. For a detailed account of the Amarnath Shrine
controversy, see Tremblay (2009: 938-945).
[70] Armed Forces (Jammu and Kashmir) Special Powers Act no. 21 of 1990, Section 4.
[71] Ibid., Section 7.
[72]
Class I comprises persons born and residing within the state before
1846 as well as persons who settled there before 1942 and have ever
since been permanent residents. Class II refers to persons other than
those belonging to Class I who settled within the State before 1969 and
have since permanently resided and acquired immovable property therein.
[73]
See Appendix II of the Indian Constitution: ‘Re-statement, with
reference to the present text of the Constitution, of the exceptions and
modifications subject to which the Constitution applies to the State of
Jammu and Kashmir’.
[74]
The four points are reducing the relevance of the Line of Control,
demilitarisation, autonomy and a joined management mechanism with
members nominated from both sides.
[75]
As a matter of fact, the term ‘special’ is used in the Indian
Constitution for several other states, i.e. Maharashtra and Gujarat
(Article 371), Nagaland (Article 371A), Assam (Article 371B), Manipur
(Article 371C), Andhra Pradesh (Article 371D), Sikkim (Article 371F),
Mizoram (Article 371G), Arunachal Pradesh (Article 371H) and Goa
(Article 371I)
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