September 26, 2026 • ZAFFAR IQBAL
Much has been written about the constitutional status of Jammu and Kashmir within the framework of Indian Constitution. Conspicuous with the label “special status”, the purport of this label has practically done more harm than good. In this piece, I have willingly perused ordinary arguments so that even a layperson who may not be familiar about constitutionalism and complex legal reasoning can comprehend the nature and function of a constitution in all its variegated forms.
The underlying thesis for this article is to depict the Indian Constitution as a product of political compromise which was envisioned as an instrument and later with the passage of time achieved the status of a symbol. However, while the Constitution successfully amassed the institutional bulwarks to satisfy systemic integration needed to solidify a nascent republic, it ultimately failed to foster and sustain societal integration within the erstwhile state of Jammu and Kashmir.
INTRODUCTION
The word Constitution is derived from the Latin word ‘constitutio’ which originally meant Law enacted by the ruler (Royal decree). In that sense it simply meant any ordinary Law in place promulgated by the ruler. It was only after the enlightenment period that its modern meaning began to develop with thinkers like Rousseau, Montesquieu, Locke with their dispositions injecting novel meanings to the word. This was in part was due to the altering structure of state and power across the Europe and the Americas.
The Napoleon code of 1804 proved to be a template in spreading written word which directed parameters for effective governance. It will be no exaggeration to claim that the codified governance spread like a wildfire across the continents. Linda Colley in her seminal book The Gun, The Ship and The Pen: Warfare, Constitutions and Making of Modern World has documented how the code acted as a catalyst for governance and how emerging nations in the South Americas heavily relied upon the document. Indeed, these global ripples of constitutionalism eventually reached India, profoundly shaping its own quest for self-determination.
POWER WEDS POLITY: CONSTITUTION IS BORN
When we hearken back to the ancient Athens, which is commonly considered as cradle of democracy, the word Constitution was predated by the word “politeia” which meant political order. This constitution was not merely a model of governance, but the complete political structure of a society organized according to the principles of virtue, balance, and law. How fairly these principles were actually applied in antiquity is a debate for another time; the historical takeaway is the concept itself. It was only in the 18th century afterwards that the word Constitution took a significantly different turn altogether. From being seen as charter for Law making power; it was now interpreted as imposing constraints upon power thus the ideology of constitutionalism was born. Prof. Martin Loughlin in his book Against Constitutionalism has adverted to how rulemaking power(empirical) was transmuted into constraining power(normative). This was not an exercise in futility or isolation. A deliberate attempt was undertaken to appeal to higher faculties and sensibilities to reach out this desired conclusion. This trajectory or evolution rests on the premise that Constitution is the product of contemporary political climes of the day, as all such dynamics were undergoing rapid changes when the era of on ancien régime was dying and a new world was struggling to be born.
CONSTITUTION: AN INDIAN EXPERIMENT
When power was transferred from imperial Britain to the local leaders, careful steps were marked to fashion (Constitution) that could promote progression and integration. It was thought best that rather than become state-nation; India shall be a nation-state. This was an assiduous task given the large-scale variations and diversities prevailing. Yet, the Constitution weathered the early storms. It successfully overcame regional disparities and took root in what Dr. B.R. Ambedkar famously warned was essentially ‘undemocratic’ Indian soil, where he cautioned that democracy was merely a ‘top-dressing.’ This was made possible on a two-pronged front. Instrumental level and symbolic level. On the instrumental front, adopting a Constitution that was both flexible as well as rigid smoothed the creases to institutionalise lawful conformity. This instrumental impetus provided and embedded systemic integration; where rules were framed, remedies were laid and accountability of public bodies was firmly established. On symbolic front societal integration was duly reinvigorated implicitly within the constitutional text. The enumeration of Fundamental Rights inter alia such as the freedom of religion and the later amendment of the Preamble to include words like ‘secular’ were deliberate, ideological attempts to foster a shared national identity. These were some few doctrinaire ways about how an attempt was made at societal integration. As demonstrated by one of the constitutional scholars that the ordinary Indians not just adopted but shaped this institutionalising tendency and turned the constitution into a sacred symbol of collective belonging.
This is the exact point underlining the leap from functional instrument to unifying symbol, where history of Jammu and Kashmir traces a somewhat melancholic path.
JAMMU & KASHMIR: SYSTEMICALLY INTEGRATED, SOCIETALLY QUESTIONABLE
When on 17 October 1949, Gopalaswami Ayyangar arose to move the draft bill (306-A) (Article 370 in the final draft), among the members of the constituent assembly; Hasrat Mohani raised the query about this discrimination apropos to Jammu Kashmir.
Ayyangar in his reply resorted to multi-farious reasons to justify this exception; chief among them was the historical necessity argument. I emphasise on this duly because this historical necessity entailed two principal actors who deliberated upon a proposal. This historicised argument got its affirmation by a Supreme Court judgement, but for all the wrong reasons in the case of Sampat Prakash v. State of Jammu and Kashmir AIR 1970 Supreme Court Journal 1118. The petitioner in this case substantially rendered the similar arguments which were advanced in the In Re: Article 370 of the Constitution which was that article 370 did not survive given that the constituent assembly was dissolved without making any recommendations of its retention.
The context of this case was deeply tied to executive overreach. The facts of the case were that Petitioner was detained under a preventive detention law which was protected from scrutiny from infringing the constitutional rights of the petitioner. Article 35(c) as initially introduced by Constitution (Application to Jammu and Kashmir) Order 1954 (C.O. 48) was the protecting sheath for such detention laws initially for a period of five years. These five years were subsequently amended and extended for ten years in 1959 (C.O. 59) and later to fifteen years in 1964 (C.O. 69).
When the counsel for the petitioner exposited his historical arguments to make his point, the Supreme Court on the other hand took the suggestion of Attorney General on face value. The suggestion endorsed by the Supreme Court was “that the provisions of Article 370 should be held to be continuing in force because the situation that existed when this article was incorporated in the Constitution had not materially altered, and the purpose of introducing this article was to empower the President to exercise his discretion in applying the Indian Constitution while that situation remained unchanged.” The problem with this accommodation was that it completely undermined the independent mechanism provided to the assembly and somewhat amplified the executive (Central) powers beyond what was prescribed, both in context and confinement.
This situation was akin to the assurances of the Solicitor General to the Supreme Court bench; about restoring statehood to the relegated UT to pre-empt hearing on the essential facet of federalism.
The underlying edifice upon which the President extended (Constitution) provisions the state of Jammu and Kashmir was the Constitution (Application to Jammu and Kashmir) Order, 1954. Between 1956 to 1994, President invoked article 370 to issue 47 modifying orders. Such heavy lifting had already extended 94 of 97 entries in the union list, and about 260 of 395 articles of the constitution of India. Where the initial acknowledgment was about three subjects viz a viz: Defence, External Affairs and Communications, the Union jurisdiction was extended to almost all subjects in the Union List.
Systematically, the state was aligned with the overall structural functional framework of the union. Gulzari Lal Nanda described the article as a tunnel through which good deal of traffic had passed and more will. Whether this systemic integration was through Feat or Fiat, is not the task here. It will be relevant for the cause of societal integration. But it suffices to buttress the point that systemic integration was very well going ahead, subtly but surely.
One incident which perhaps foreshadows the inevitable demise of article 370 was in 1986. This pertains to the extension of article 249 of the Constitution. The article empowers Parliament to legislate on the subject listed in the state list if Rajya Sabha passes a resolution by a 2/3 majority declaring it to be in national interest. The state was under the central rule through Governor Jagmohan. Mr. Jagmohan unilaterally initiated and passed the proposal in a span of a single day riding rough-shod over any propriety of constitutional decorum, extending Article 249 to the state. The then Law Secretary to Government, Law Department had officially recorded his vehement objection to such hasty and unauthorized acts. Indeed, such acts would not have been possible save the Article 370; which was abused and disabused sometimes single-handedly by the centre or sometimes in cahoots with the state government.
On societal integration, faith in a constitutional project remains an imperative element, if it intends to embed itself within the societal contours. True integration relies heavily on cultural and emotional factors. For constitutional theorist Rudolf Smend, this faith is reflected from the cultural factors. When the highest judgments merely reflect the dominant cultural milieu of the Centre while ignoring the lived reality of the State, that faith fractures.
Now, the sole avenue open to the state government as well as the ordinary masses of the erstwhile state is to re-negotiate the assertions and affirmations because what can be formerly frivolous has the potential to transmute into coevally canonical. It is tempting here to invoke G.K. Chesterton’s famous adage: “Tradition is the democracy of the dead.” In the case of Jammu and Kashmir, this “tradition” is the laborious historical context, forged through decades of skilful statecraft and deft negotiations, which cannot be simply erased by executive decree. Moving with the waves of history, care shall be taken to bring into confidence the vox populi (voice of the people), as one constitutional scholar advocated, a living democracy requires an “Open Society of Constitutional Interpreters”, a system where citizens themselves, not just the courts and the executive, assert ownership of the Constitution.
CONCLUSION
Ultimately, the state has occupied the constitutional imagination of all the stakeholders. With its chequered history and beleaguered present; it serves as a cautionary tale of how constitutions might ultimately fall short of its ennobling ideals. It would be an exaggeration to extol the constitution as an infallible document. Succumbing to this “Aesthetic Fallacy”,worshipping the structural beauty of the document while ignoring its functional failures on the ground is fatal to the evolving dynamics of the state-citizen relationship.
If the Constitution is to ever successfully transition from a mere instrument of governance into a unifying symbol in J&K, it can no longer be imposed from the top down. It must be lived, shaped, crafted and genuinely believed in from the ground up.
