CRITICAL ANALYSIS OF THE

CONCEPT OF STATE
AUTONOMY AND SELF-
DETERMINATION UNDER
FEDERAL CONSTITUTIONAL
REGIMES
SUBMISSION FOR SEMINAR PAPER-I COMPARATIVE
CONSTITUTIONAL LAW
SUBMITTED BY: IQRA KHAN
CHAPTER I: INTRODUCTION
This paper shall explore the following points:
a. What are the provisions regarding state autonomy under various federal
constitutions?
b. How do these constitutions uphold state autonomy and self-determination
and resolve its conflict with national integrity?
c. How do these Constitutions deal with secessionism or the assertion of state
autonomy?
d. Whether the Indian Constitution provides for alternative courses of
action regarding amendment of Article 370 and what recommendations
can be imported from other constitutions?
CHAPTER II: STATE AUTONOMY AND
SELF-DETERMINATION UNDER THE
INDIAN CONSTITUTION
i. Constitutional Provisions of a Federal Nature and the Concept of State
Autonomy
State of Karnataka v Union of India held that since states our Constitution is not of a
federal character where separate, independent and sovereign States could be said to
have joined to form a nation as in the United States of America or as may be the
position in some other countries of world.
Citing the presence of both Unitarian as well as federal features in a unique
combination, K.C. Wheare remarked upon the Indian Constitution calling it a quasi-
federal Constitution.
Federal features:
 Division of powers between the Union and the States
 Supremacy of the Constitution- Kesavananda Bharti v State of Kerala.
 Partial rigidity of the Constitution
Unitarian Features:
 Financial dependence of states of the Union
 Unequal representation of units
 Centralized amendment power
 Office of the governor
 Hierarchy of courts
 Territorial integrity and threat of external forces
 Union territories
State Autonomy in India
 The diverse nature of the subcontinent creating secessionist tendencies, and the
presence of external threat from China as well as the newly formed Republic of
Pakistan, were all reasons behind the choice of a strong Centre by the makers of
the Indian Constitution.
 India was a nascent state and years of colonial rule and drain of wealth had left it
with an urgent need to address its economy. Therefore, an indestructible Union was
envisaged.
 In the 1950s, the integrity of the Union was threatened by the pioneers of the
Dravid Movement.
 In the case of State of West Bengal v Union of India Parliament is competent to
destroy a State and was thus held competent to claim rights over land previously
vested in the state. This was seen as a breach of autonomy by the state.
 In State of Rajasthan v. Union of India, the court observed that the urgency for
economic development required pan-India planning and coordination, which was
bound to affect the federal nature of the government.
ii. Case Analysis of the State of Jammu and Kashmir
a. Centre-State Relations Pertaining to J&K and the Purpose of Article 370
Historical Context from Instrument of Accession and Constitutional Assembly
debates by G.S. Ayyangar.
Purpose of Article 370- special status, extension of provisions and to vest ultimate
power with the Constituent Assembly of J&K, limitation of Parliament’s powers with
respect to J&K.
Permanent and special nature of Article 370: dissolution of Constituent Assembly of
J&K and its decision to retain Article 370; Prem Nath Kaul v State of Jammu and
Kashmir.
b. Article 370 as Basic Structure and Limitations to the Parliament’s Powers under
Article 368
Doctrine of basic structure- Kesavananda Bharti v State of Kerala
Federalism as basic structure
Article 370 as essential to the federal model in India and the guardian of state
autonomy and the extender of Article 1 to the state of J&K
c. Power of the President under Article 370 and limitations
Article 370(3) provides that the operation of the provisions of Article 370 may be
ceased by way of a Presidential Order, however, this can only be done on the
fulfilment of the condition that such a recommendation comes from the Constituent
Assembly of Jammu and Kashmir. This is a limitation to the powers of the President
which enshrines federal principles of the Indian constitution, which have been
breached by the Centre.
Power to extend constitutional provisions has also been exceeded as the concurrence
of the state government was not sought.
d. Constitutional Validity of The Constitution (Applicable to Jammu and Kashmir)
Order, 2019
 President’s powers under Article 370 cannot be used to indirectly amend Article
370 itself.
 Powers may not be used to add new provisions to the Constitution, but may only
extend the application of the existing provisions to the state of Jammu and
Kashmir.
 Order inserted another clause to Article 367, namely Article 367(4) which
provided that the words ‘Constituent Assembly’ in Article 370 are to be read as
‘Legislative Assembly of the state and reference to the state government is to
include references to the Governor. Invalid as prior amendment by the Parliament
is needed.
 The governor’s office was used to declare President’s Rule in the State without
sufficient grounds for the same. And the provisions under Article 356 were used to
vest the Parliament with the powers of the State Legislative Assembly.
 The move attracts colourable legislation.
e. Alternative Courses of Action
 Another alternative to the course that could be adopted would be to pass a
constitutional amendment so as to add Article 367(4)(d) to read ‘Constituent
Assembly’ as ‘State Legislative Assembly’, or else the provision would remain
frozen in time.
 After doing so, the Jammu and Kashmir Assembly must be left to decide and sent
its recommendation as to whether it wishes to retain or revoke or modify Article 370.
CHAPTER III: STATE AUTONOMY
AND SELF-DETERMINATION UNDER
THE CONSTITUTION OF PAKISTAN
 After the Independence of East Pakistan, Pakistan had a new constitution in 1973, to
incorporate the aspirations of its people and of the political opposition. A bicameral
Parliament was envisaged by the provisions therein, with equal representation of the
provinces in the Senate, providing for fourteen seats for each province. It allocated eight
seats for the Federally Administered Tribal Areas (FATA) and four seats for the Islamabad
Capital Territory.

 Article 1 of the Constitution states that Pakistan shall be a Federal Republic called the
Islamic Republic of Pakistan. It states the division of the territories of Pakistan into
four provinces, viz. Khyber Pakhtunkhwa, Punjab, Sindh, Balochistan, and the areas
lying outside provinces into Federal Capital Islamabad, Federally Administered Tribal
Areas, and territories to be included in Pakistan by way of accession or otherwise.
i. Constitutional Provisions on Federal Relations
 Art 141 of the constitution lays down the territorial extent of Federal and
provincial legislations. Same as India.
 Art 142 determines the legislative competence of the federal and provincial
legislatures. FLL for federal competence, residuary powers with provinces, no
concurrent list.
 Much like India, the doctrine of repugnancy finds its way in the 1973 Constitution
of Pakistan in Art 143.
 Article 144, like Article 252 of the Indian Constitution, provides for powers of
federal legislature to legislate upon matters outside the FLL if the legislatures of
two or more provinces pass resolutions asking for the same. Unlike India, the
provincial legislature may amend or repeal such law.
 Emergency provisions- Like India, it provides under Article 232 that in the case of
war, internal disturbance etc., provinces would fall under the legislative
jurisdiction of the federal legislature.
 In case of internal disturbance, on passing of resolution by the Provincial
Assembly, the President may proclaim emergency. In the absence of such a
resolution, the proclamation requires to be approved by both houses of the
Parliament within 10 days.
 Federal legislature assumes legislative powers.
 Federal government assumes executive functions but not high courts functions.
 Amendment powers-Under Article 238 of the constitution of Pakistan, amendment
powers, like Article 368 in India, rest with the federal legislature.

 Except- Bill to alter provincial limits shall not be presented before President for
his assent unless passed by the provincial assembly of the affected province by a two-
third majority. Whereas, in India, proviso to Article 3 only requires the President to
seek the views of the state legislature upon the matter.
ii. Case Analyses
 Balochistan-
The Unitarian scheme was abolished in 1970 and the federation responded to the demands
of Balochistan and assigned them provincial status but this did not quell the demand for
sovereignty. The appeasement mechanism of the special position of the state within India
and the recognition of the distinctiveness of the Kashmiri people, was absent in the case of
Balochistan and Pakistan, as the Pakistani government merely responded with a provincial
status, in 1970, which was too little too late.
 Gilgit-Baltistan-
Gilgit-Baltistan only achieved a partly-provincial status in the year 2009 and has no
delegation in the Parliament of Pakistan. It is governed by the Gilgit-Baltistan Council
headed by the Prime Minister established by GB Order 2009. The council has sole power
to make laws on 55 subject matters of the Council Legislative List. The elected assembly
has the sole power to make laws upon items on the Assembly Legislative List. But the
residuary powers rest with the federal government and it directs the Assembly.
 This is in stark contrast with the case of Article 370 on Jammu and Kashmir where
the residuary powers rested with the state legislative assembly and in opposition to
the increased direction and control by the federal government in the case of
Pakistan, Indian government has limited powers, subject to concurrence of the
state government in Jammu and Kashmir.
Journey towards Increased Provincial Autonomy to Curb Secessionism
 SPCCR Report 2010- to increase provincial autonomy.
 Based on this, the 18th Amendment was passed.

 The Act abolished the concurrent list as it exceeds federal powers.

There is only one list with two parts.
 Part I lists the items over which the federation has exclusive powers.
 Part II has items that fall under the jurisdiction of the Council of Common
Interests (CCI), whose object is to promote a collaborative control of national
assets and to adjudicate upon controversial matters referred to the Council.

 Article 172 amended to share control of natural resources (minerals, oil and
natural gas) between both the federal and provincial governments. Especially
improves Balochistan’s place as it has rich resources.
 With Pakistan taking slow steps in the direction of provincial autonomy, India is
taking a step back and withdrawing the perks and powers that were previously
vested in its constituent states.
 However, the presence of increased federal control can be justified by citing
reasons of security and territorial integrity of the nation.
 However, India can only achieve lasting and sustainable peace in the region by
giving Constitutional guarantees to the people of Jammu and Kashmir that their
demands would be respected subject to the provisions of the constitution which
does not allow secession but permits special status.
CHAPTER IV: STATE AUTONOMY
AND SELF-DETERMINATION UNDER
THE CONSTITUTION OF CANADA
i. Constitutional Provisions on Federal Relations
Canada has federal and provincial governments.
Federal legislature- elected House of Commons and an appointed Senate.
The head of the state is the Governor-General who has ceremonial functions and the
head of the federal government is the Prime Minister.
The Federal Judiciary- Supreme Court of Canada which is the final court of appeal in
the land along with the Federal Court and the Tax Court.
Provincial level- there is a similar set up with a separation of powers among the
legislature, the executive and the judiciary. The country also has two other tiers of
government, viz. territorial and local, which are not recognized by the constitution.
The Constitution Acts 1867-1982 govern the federal-provincial relations in Canada.
Distribution of Powers:
 Provincial:
Section 92- local importance matters like hospitals, prisons etc under provinces and
the rest lie with the federal government.
Limited powers of taxation with province- only direct taxes on income for revenue.
Section 93- education matters under province.
 Federal:
Section 91 -refers to federal powers, and contains the Peace Order, and Good
Government clause which states that the powers not vested in the province in Section
92, i.e. the residual powers, fall under the federal government. These include the
regulation of trade and commerce, the military, the criminal law etc.
Gives broad taxation competence- in any mode.
Powers can be exceeded only in case of National Emergency.
 Concurrent:
Section 95 of the Act provided for two areas where the governments would posses
concurrent powers i.e., in the subject matters of agriculture and immigration.
Unitarian Provisions:
 Power of Reservation (Section 55)- of Lt Gov to reserve Bill for Parliament.
 Power of Disallowance (Section 56)- of Federal govt to disallow despite Lt Gov’s
approval.
 Declaratory power (Section 90)- bring a local initiative within federal control for
the benefit of Canada.
 Financial Dependence- equalization payments (Sec 36(2)) given to maintain
comparable levels of public services (provinces often mind this as it derails their
budget) and conditional grants (which also face opposition as one province has to
pay taxes for another).
Quebec opposes lack of fiscal federalism and taxation powers of the federation very
strongly and sees it as English-Canadian dominance.
 Federal Trends:
The Constitution Act 1982 provides for various ways to amend the Constitution,
which are bilateral.
Section 41- unanimous agreement on issues of national importance (office of Queen,
use of English or French etc); both federal and all provincial legislatures need to pass
the bill.
Section 38- issues of less importance, which merely need the legitimisation by
Parliament and the backing from two-thirds of the provinces constituting at least 50
per cent of the population. No unanimity needed.
Regional Veto power in Sec 38- Quebec, Ontario, British Columbia, 2 Atlantic and 2
Prairie provinces must assent to bill.
Section 43- a provincial legislature or Houses of the federal Parliament may initiate
amendment to a constitutional provision that pertains to multiple, but not all the
provinces.
These bilateral amendments are beyond regional veto powers.
ii. Case Analysis of Quebec:
 Status like J&K, many special provisions made to keep it within the federation.
 Canadian constitution has been amended to accommodate the demands of the
people of Quebec and their distinct identity has been recognized.
 But they don’t want secession, but want a reformed federation.
 1980 referendum- 60% voted against secession, hoping for reform.
 1982 Constitution initially did not recognise Quebec as a distinct society or
involve Quebec in debates.
 Protests erupted.
 In 1986, Quebec stated its terms for accepting the Canadian Constitution of 1982,
which it sought to negotiate with the federal government. These were as follows:

1. Recognition of Quebec as a distinct society;

2. Restrictions on the federation’s spending powers in areas of provincial
jurisdiction;
3. Promise to give the province more authority in the area of immigration;
4. Provincial involvement in the recruitment of justices of the Supreme Court; and
5. A veto right for Quebec.
Attempts to accommodate these demands:
 Meech Lake Accord 1987- failed due to lack of ratification. Proposed to recognize
Quebec as a distinct nation within Canada.
 1991, the Belanger-Campeau Commission submitted a report that stated that the
option to reign in the Quebec issue, was to reform Canada’s model of federalism.
 The Charlottetown Accord envisaged the inclusion of a clause called the Canada
Clause in the Constitution of Canada which was to be read in the light of Quebec’s
recognition as an autonomous province. The clause laid down that Quebec was to
exist within Canada as a distinct society, inhabiting a French-Canadian population
and culture, and a tradition of civil law.
 Rejected. Due to conflicting provisions- one, equality of provinces, other, distinct
status of Quebec. Confusion as to how they would interact.
 In 1995, there was another referendum in Quebec where 50. 58% of the population
voted against sovereignty. Therefore, once again, it was established, that unlike,
Jammu and Kashmir, Quebec was reluctant to exercise it’s right of self-determination
and wished to stay within the federation, but a reformed federation which would give
the province increased autonomy.
 In 2006, the Canadian government began another round of discussion on the
Constitution to declare that it recognized Quebec as a nation within the Canadian
federation. This resolution was adopted.
 However, the single citizenship envisaged in the 1982 constitution has made
Quebec’s accommodation harder to achieve as Quebec hopes for a dual identity and
polity. Their proposition speaks of a perfectly federal government and could inspire
federal Constitutions across the world, including that of India, in its treatment of
Jammu and Kashmir. It is therefore regrettable that they have failed to arrive at an
agreement despite Quebec’s belief in a strong federation, unlike the demands of
sovereignty in Jammu and Kashmir.
 A step in the direction of resolving part of the tensions between the federal and
provincial governments would be to resort to the provision of bilateral
Constitutional amendment provided for under section 43 of the Constitution Act,
1982. The federal and provincial legislatures could adopt an amendment whereby
they could identify French as the provincial language of Quebec and thereby give
Quebec the constitutional identity that they demand.
An example set by Canada in allowing a Quebecois nation to flourish harmoniously
within its federal Constitution will inspire India, Pakistan and federations across the
world to allow provinces more autonomy and achieve a flawlessly federal system of
government.