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Constitutional Position of Jammu and Kashmir

Written by: Surya Bhan Singh Billawria - Pursuing 5th year of LL.B. (5-year law course) at D.E.S. Law College, Pune under University of Pune
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Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the State of Jammu and Kashmir has been accorded special status under Article 370. Even though included in 1st Schedule as 15th state, all the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of Chief Minister.

Historical aspect
When India and Pakistan gained their independence on 15th and 14th August 1947, respectively; J&K chose to remain independent. There was an agreement by J&K with Pakistan and India that none of them will attack J&K. While India respected the agreement and exercised restraint, Pakistan attacked Kashmir in a bid to annex it by force. On 6th October 1947, Kashmir was attacked by “Azad Kashmir Forces” supported by Pakistan. To save J&K, Maharaja Hari Singh (the then ruler of J&K) chose to accede J&K to India.

In October 1947, the accession was made by the ruler in favour of India in consideration of certain commitments made by Pt. Jawahar Lal Nehru (the then Prime Minister of India). It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution.

Special Features

Separate Constitution

J&K is the only state in India which has a Constitution of its own. The Constitution of J&K was enacted by a separate Constituent Assembly set up by the State and it came into force on 26th January 1957.

Jurisdiction of Parliament

Parliament or the Union Legislature has very limited jurisdiction in case of J&K as compared to other states. Till 1963, Parliament could legislate on subjects contained in the Union List, and had no jurisdiction in case of Concurrent List under 7th Schedule of the Constitution. But now, the Parliament has power to legislate not just on subjects contained in the Union List but also on some of the subjects of Concurrent List. Residuary powers, unlike other states, rest with J&K. The Parliament has no power to legislate Preventive Detention laws for the state; only the state legislature has the power to do so.

Autonomy in certain matters
Any action of the Union Legislature or Union Executive which results in alteration of the name or territories or an international treaty or agreement affecting the disposition of any part of the territory of the state requires the consent of the State Legislature or the State Executive (as the case may be) to be effective. The Union has no power to suspend the Constitution of J&K.

Emergency Provisions

The Union of India has no power to declare Financial Emergency under Article 360 in the state. The Union can declare emergency in the state only in case of War or External Aggression. No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the state unless (a) it is made at the request or with the concurrence of the government of the state; or (b) where it has not been so made, it is applied subsequently by the President to that state at the request or with the concurrence of the government of that state. In December 1964, Articles 356 and 357 were extended to the state.

Fundamental Duties, Directive Principles and Fundamental Rights

Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K. In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are still applicable to J&K; hence the Fundamental Right to property is still guaranteed in this state.

High Court of J&K

The High Court of J&K has limited powers as compared to other High Courts within India. It can’t declare any law unconstitutional. Unlike High Courts in other states, under Article 226 of the Constitution, it can’t issue writs except for enforcement of Fundamental Rights.

Official Languages
Provisions of Part XVII of the Constitution apply to J&K only insofar as they relate to (i) the official language of the Union; (ii) the official language for communication between one state and another; or between a state and the Union; and (iii) language of the proceedings in the Supreme Court. Urdu is the official language of the state but use of English is permitted for official purposes unless the state legislature provides otherwise.

Certain special rights have been granted to the permanent residents of J&K with regard to employment under the state, acquisition of immovable property in the state, settlement in the state, and scholarship and other forms of aid as the state government may provide.

The 5th Schedule pertaining to the administration and control of Schedule Areas and Scheduled Tribes and the 6th Schedule pertaining to administration of tribal areas are not applicable to the state of J&K.

Procedure for Amendment of State Constitution

The Provisions of the State Constitution (except those relating to the relationship of the state with the Union) may be amended by an Act of the Legislative Assembly of the state passed by not less than two-thirds of its membership. If such amendment seeks to affect Governor or Election Commission, it needs President’s assent to come into effect. No amendment of the Constitution of India shall extend to J&K unless so extended by an order of the President under Article 370(1).

Amendment of Article 370

Under Article 370(3), consent of state legislature and the constituent assembly of the state are also required to amend Article 370. Now the question arises, how can we amend Article 370 when the Constituent Assembly of the state no longer exists? Or whether it can be amended at all? Some jurists say it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370(1). But it is still a mooted question.

Demand for Abrogation of Article 370

Equally valid arguments are forwarded by those in favour of and those against its abrogation. Those in favour argue that it has created certain psychological barriers. They say that it is the root cause of all the problems in J&K. The further believe that it is this Article 370 which encourages secessionist activities within J&K and other parts of the country. They say, at the time of enactment, it was a temporary arrangement which was supposed to erode gradually. They also argue that it acts as a constant reminder to the Muslims of J&K that they have still to merge with the country.

Those against its abrogation forward the following arguments. They contend that that Abrogation will have serious consequences. It will encourage secessionists to demand plebiscite which will lead to internationalisation of the issue of J&K. They further argue that the contention of Article giving rise to secessionist activities is baseless as states like Assam and Punjab, which don’t have any special status have experienced such problems. It would not only constitute a violation of the solemn undertaking given by India through the instrument of accession, but would also give unnecessary misgivings in the minds of the people of J&K, making the issue more sensitive.

The demand for abrogation of the special status of J&K is completely justified. The author feels that it is indeed root cause of all the problems of J&K and encourages secessionist activities within J&K. In the latest controversy relating to “Land Transfer” to Shri Amarnathji Shrine Board, it was alleged by separatists that it was a violation of Article 370 as the land was being transferred to India. Whereas, it was not so, as the land was being “diverted” and not “transferred”, as alleged. It has, indeed, created “psychological barriers” in minds of people of J&K and people of other parts of the country for each other. Some people in other states believe that you need a Visa or something like that to enter the state of J&K.

The question of plebiscite doesn’t arise till Pakistan doesn’t withdraw its forces from POK (Pakistan Occupied Kashmir). India has taken a stand that after lapse of so much time, the circumstances within state have changed. Under the changed circumstances, the plebiscite can’t be held and hence, the demand for it is completely unjustified. The view is accepted by most of the nations of the world like USA, UK, France, etc. As far as the argument pertaining to Punjab and Assam is concerned, every problem has its own reasons. You can’t equate one problem with another just because it appears to be similar. Like death sentence is not awarded in all cases of murder because of appreciation of the facts of the individual cases; similarly before giving a verdict on this issue, the “individuality of facts” needs to be appreciated.

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