050 - Comparative Federalism (1987) (254-257)

COMPARATIVE FEDERALISM (1987). By Durga Das Basu.
Prentice-
Hall of India Pvt. Ltd., New Delhi. Pp. xxv+642. Price Rs. 200.
THE DIFFERENCE between a Unitary and Federal constitution lies in
the concentration of all legislative power in the Central legislature in the
former and in the distribution of such power between the Central and the
state legislatures in the latter. But within the category of Federal state
there are two kinds of federations. One is having a dual citizenship,
i.e., citizenship of the country as also of a state. The other is a single citi
zenship for the whole country and no separate one for any state. While
India by its Constitution has opted for a single citizenship fcr the whole
country, there are certain problems which prevent its straightforward
application throughout the country. The problem is of a citizen of the
country having equal rights in all the states.
In the book1 under review Basu has highlighted the peculiar case of
the State of Jammu and Kashmir (J & K) for which a special provision
is made in the Constitution in article 370.2 Herein lies the important diffe
rence between J & K and other states. J & K as also other states ruled by
Indian princes acceded to India by the Instruments of Accession. But
while the terms of accession have been preserved by article 370 of the Con
stitution in case of J & K, in case of all other states the original terms of
their instruments of accession have been superseded by the application
of the Constitution of India to them. Hence no instrument of accession
executed by a ruler of an Indian state has now any validity except that of
J & K. This explains the special relationship between that state and
India. It has resulted in the promulgation of the Constitution (Appli
cation to Jammu and Kashmir) Order 1954 which modifies the Constitu
tion of India by amending several of its provisions in their application to
the State of J & K and by excluding some and leaving a few to apply to
it without modification.
One special provision has led to a recent controversy which has been
referred to the Supreme Court for opinion under article 143 of the
Constitution. This is such a special feature of the Indian Federation that
the subject of comparative federalism can hardly contemplate it. This
may be the reason why Basu has not dealt with this particular controversy.
Nevertheless, this book is meant more for India than other federations and
I Durga Das Basu, Comparitive Federalism (1987).

2. The substance of the article can be stated as follows: Notwithstanding anything
in the Constitution the power of Parliament to make laws for the State of Jammu
and Kashmir is limited only to those matters in the Union list and the Concunent List
which, in consultation with the government of the ^ate, are declared by the Piesidcnt
to correspond to matters specified m the Instrument of Accession go\ermng the accession
of the state to the dominion of India.
3 988] BOOK REVIEWS 255
therefore it would be appropriate to add some more discussion to this

subject.
The only federation in which there is a semblance of this problem
is Canada. In the Constitution of Canada a constituent state has a power,
concurrent with the power of the federation and subordinate to it, to
legislate about "immigration into the province" under article 75 of the
Canadian Constitution Act 1867. The exercise of this power may affect
a Canadian citizen in respect of "property and civil right in the province"
in view of section 92 (13).
But the State of J & K has far greater powers. While under
article 19 (1) (d) of the Constitution of India every citizen has the right
to move freely throughout the territory of India and, under article 19 (1)
(e), has the right to reside and settle in any part of the territory, this
right alongwith other rights guaranteed by other clauses of article 19
is made subject to "such restrictions as the appropriate legislature deems
reasonable" in applying article 19 to the State of J & K for a period of
25 years from the commencement of the Order of 1954. The word "twenty-
five" is an extension of the original words "ten" and "twenty" showing
that article 370 itself is a transitional provision in the Constitution and
it was not the intention to prolong this special relationship between India
and J & K too long. Once the extension regarding the limitations on
the application of article 19 by state legislation is stopped, article 19 as
a whole will apply to that state.
The Constitution of J&K exists separately from the Constitution of India.
It has to be read with the latter as applied to J&K by the Order of 1954. A
combined reading leads to the following peculiar constitutional position
described by Basu. He observes:3
(0 The people of J&K are citizens of India at the the commencement
of the Constituton if they satisfy the conditions laid down in articles 5
or 6.
(//) Notwithstanding anything in article 7 of the Constitution of India,
however, a permanent resident of J&K who migrates to Pakistan but returns
under a valid term for resettlement or permanent return to J&K will be a
citizen of India.
(Hi) It is left to J&K to define the classes of persons who are to be perma
nent residents of J&K. This has been done by article 35.4 of the Constitution
of India, which, (a) states the laws with respect to permanent residents and
their rights; and (b) gives the legislative power to make such Jaws to the
State of J&K. These laws are to define the classes of persons who shall be
the permanent residents of J&K and to confer on them special rights and
privileges in respect of, (7) employment under the state government; (//) acqui
sition of immovable property in the state; (///) settlement in the state; or
{iv) right to scholarship and such other form ofaidasthe state government
3. Supra note 1 at 214-16.
256 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 30 : 2
may provide. This special provision in the Constitution is to stand notwith

standing anything contained therein.
It may be pointed out that the factor of unequal development among
the other states in India has encouraged some of the backward states to
claim some such rights for their residents also. This has led to the addition
of some articles in the Constitution4 entitled "Temporary, transitional and
special provisions" in which article 370 is contained. Article 371 and articles
371A to 371F make special provisions in relation to certain other states of
India. Articles 371G, 371//make special provisions in relation to certain
other states of India. Articles 371G, 371// and 371/ have been added by the
53rd,5 55th?6 and 57th7 Amendments to the Constitution in respect of the
States of Mizoram, Arunachal Pradesh and Goa, respectively, in 1986 and
1987. This will show that the desire to have some special rights exists in
certain states due to their backwardness and other peculiar problems, which
desire in the State of J&K has led to a full-fledged separate Constitution for
that state.
The common features of the special rights are those rights and privileges
which have been reserved for the State of J&K legislature to confer on their
permanent residents. The feeling that "sons of the soil" of a particular state
should not be surpassed in their rights by other citizens of India from other
states exists in a latent form in certain states. In the State of Madhya Pradesh
admission to a medical college was made subject to the payment of heavy
capitation fees for students who were not "bona fide residents" of that state
while those who were, got exemption from its payment. In a majority
judgment the Supreme Court in Joshi v. State of M.P..8 held that the
provision was valid.
It was explained that the rule was not contrary to article 15(1) of the
Constitution which prohibits discrimination on the ground of place of birth.
There is thus a latent problem in an incipient form in certain states in India,
which has assumed a blatant form in the State of J&K. It is to be borne in
mind, however, that it is not any feeling of separatism which makes a state
try to protect its bona fide residents against competition from people coming
in that state from other parts of India. On the other hand, it is a fact that
people of certain states are backward as compared to those of the more
advanced states. There is inequality in fact between the backward and
advanced states. According to article 14 of the Constitution there has to be
equality before law and equal protection of laws.
The question is whether the principle of article 14 is to be extended to
the relationship among the states also. Reasonable clarification does not
contravene the principle of equality because just as equals have to be treated
4. Part XXI.
5. The Constitution (Fifty-Third Amendment) Act 1986.
6. The Constitution (Fifty-Fifth Amendment) Act 1986.
7 The Constitution (Fifty-Seventh Amendment) Act 1987
8. A.f.R. 1955 SC. 334.
1W8] BOOK REVIEWS 257
equally unequals have also to be treated unequally. In this larger sense, to

some extent, even the special relationship of J&K may be understood more
sympathetically.
The problem of the Indian Constitution in this respect is how best the
inequalities among different states in India are presently reconciled by such
expedients as exist in articles 370 and 371. But the ultimate goal must be to
eliminate the root cause of the inequality. Once the backwardness of certain
states is removed and all the states become equally advanced the need for
such special protection to the residents of such states wiU disappear. In the
meanwhile, it would be interesting to see if the challenge to any legislation
by a state reserving certain rights to its bonafideresidents is considered in
regard to the constitutionality of such a provision in the light of article 14
of the Constitution. Such consideration would be an advance over the deci
sion in Joshi by the Supreme Court.
Once this disparity of socio-economic conditions among the different
states is removed, a clearer vision will be available for consideration of the
basic question between the federation and the states regarding the distri
bution of legislative and administrative powers. There is a demand from
the states for having more sources of revenue than are presently allotted to
them under the existing distribution of legislative powers. This can be consi
dered in a healthy atmosphere and appropriate expansion of the financial
resources of the state can be made, once the unhealthy element of claims to
backwardness existing in certain states is eliminated by economic advance
ment of those states.
V.S. Deshpande*
♦Former Executive Chairman, Indian Law Institute; former Chief Justice, Delhi
High Court, New Delhi.

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COMPARATIVE FEDERALISM (1987). By Durga Das Basu.

I Durga Das Basu, Comparitive Federalism (1987).

therefore it would be appropriate to add some more discussion to this

may provide. This special provision in the Constitution is to stand notwith

equally unequals have also to be treated unequally. In this larger sense, to

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050 - Comparative Federalism (1987) (254-257)

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050 - Comparative Federalism (1987) (254-257)

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050 - Comparative Federalism (1987) (254-257)

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COMPARATIVE FEDERALISM (1987). By Durga Das Basu.

I Durga Das Basu, Comparitive Federalism (1987).

therefore it would be appropriate to add some more discussion to this

may provide. This special provision in the Constitution is to stand notwith­

equally unequals have also to be treated unequally. In this larger sense, to

You might also like

may provide. This special provision in the Constitution is to stand notwith