ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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A Confederate within a Federal System

Jammu and Kashmir

A constitution is the legally permitted matrix for exercise of power and access to power. The Constitution of India is a federal constitution that establishes a dual polity, which consists of the union at the centre and the states at the periphery, each endowed with sovereign powers assigned to them by the Constitution. Jammu and Kashmir, however, stands out as the only state in the Indian union that is not governed by the general scheme of distribution of powers. A special departure was made, defi ning what powers ought to belong to which government, which perhaps leans towards a more confederal than federal arrangement.

The Government of India Act 1935 attempted to devise a constitutional framework for the future India (comprising both Indian states and British India) on a federal structure. It was, however, optional for Indian states to enter into a federation. On the other hand, the authority exercised by the federal government over Indian states extended to such matters as would be ceded by them on entering into a federation. The mechanism for acceding to either dominion was provided under the Act. Section 6 of the Act provided for accession to an Indian state. Since Section 6 fell under Part II of the Act, it was not enforceable, for the Act had only partly come into force in 1937. So the accession of Indian states to the federation under the Act of 1935 never existed, legally. But the Act was the only constitution in existence. The solution to the problem was provided in the Indian Independence Act, 1947 of the British parliament. It had the effect of setting up the erstwhile British territory in India as an independent sovereign state and of freeing the former princely states of India from the suzerainty of Britain. The princely states became independent sovereign states in the meaning of international law. The Indian Independence Act, 1947 contained a provision in terms of which the freed princely states could join either India or Pakistan and consequently enter into a federation.

Jammu and Kashmir stands out as the only state in the Indian union that is not governed by the general scheme of distribution of powers. A special departure was reached, defining what powers ought to belong to which government. The arrangement was arrived in light of that the Indian Constitution does not apply proprio vigore (by its own force) to Jammu and Kashmir. This article seeks to analyse whether such an association exhibits some of the typical, if not all, features of a confederal structure of government.

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