Federalism as a safeguard of national integrity: Trial and error in the case of Jammu and Kashmir

When in 2019 the Indian State of Jammu and Kashmir was stripped of its special status and transformed into two closely integrated Union territories, an international outcry erupted among politicians, legal scholars, and the general public. It was the first and only time in which the powers of Article 3 of the Indian constitution have been used not to convert a Union territory to a State to grant it more individual powers but for the opposite purpose. The legal flawlessness of the “constitutional sleight of hand” used to achieve this has still to be determined by India’s Supreme Court. In the meantime, it is still possible to investigate how this unprecedented move has been made possible. This paper begins by briefly examining how the once independent State of Jammu and Kashmir became part of the Indian Union in the first place, delving into the reasons that had led to the State’s accession and the special guarantees that had been promised to the Maharaja and his people and that made it possible for the Muslim-majority State to be incorporated into the Indian Union. Furthermore, it discusses whether the integration into the Indian Union could have been regarded as “complete” before the events of 2019, or if the move by PM Narendra Modi and his Bharatiya Janata Party had been a foreseeable outcome, albeit a surprising one in terms of the means used. The study adopts a comparative constitutional law perspective with the aim of investigating if the State’s political class failed to act in order to prevent what has been seen by some in the State as a hostile takeover by the Indian government. Finally, the article uses these lessons as a reminder that the autonomy of a subnational entity is only as strong as the legal framework in which it is embedded.

Access work

https://works.eurac.edu/Digop-02-2022-michael-fliri-federalism-as-a-safeguard.pdf