Constitutional Integration of Jammu & Kashmir

By Satakshi Sharma, CNLU, Patna

Editor’s Note: The state of Jammu and Kashmir possesses a distinct position in the Indian Union. Unlike other states, the state of J&K has its own constitution and a separate flag to represent itself. Though it is stated in the schedule 1 of the Indian Constitution that J&K is the constituent part of India like other states but because of article 370 many constitutional exemptions are made in favor of J&K and hence confiding J&K with the inferior status to that of other status and creating a unique relation of this state with the Indian Union.

Article 370 is a special clause of temporary nature in the Indian Constitution, a prize that was extracted out of India in 1950.  It seeks to present the historical background of article 370 and further, it mentions the milestones which lead to the integration of this state which is still in the process. The author seeks to discuss this issue in great detail along with the contemporary debates with regard to Article 370 in India.

Introduction

Article 370 was included in the Constitution, not as an afterthought but after mature consideration by the Constitution- makers. It was a condition of Kashmir’s accession to India and if that accession is sacrosanct, the condition must also be sacrosanct. Kashmir did not obviously want to join Pakistan. Kashmir procrastinated between independence and accession to India and chose the latter.

Accession to India was conditional on Kashmir retaining its distinct cultural and regional identity. Article 370 assured the state all benefits of independent Kashmir without sacrificing the advantages of being a part of the larger Indian federation. It confers maximum autonomy upon the state of Jammu and Kashmir[1]. In pursuance of the integration, many constitutional exemptions are conferred over J&K state.

Applicability of Certain paramount central statutes, which are Indian Penal Code 1860, The Prevention of Corruption Act, 1988, The Religious Institutions (Prevention of Misuse) Act, 1988, The Delhi Special Police Establishment Act, 1946, The Commissions of Inquiry Act, The Protection of Human Rights Act, 1993 The Unlawful Activities (Prevention) Act, 1967, The Representation of the People Act, 1950 and 1951, is not extended to the state of J&K, which are also briefly covered by it. The paper contains the explanation of Article 370 and interprets the language of Article 370 as incorporated in the Indian Constitution.

Later on, it deals with the other laws which are made with regard to the state of J&K. In addition to that, it compares the status of the state of J&K with that of the other states of India and a brief discussion with regard to the temporary nature of this article 370. It also enlists the merits of the abrogation of article 370 and the repercussions of the abrogation of this article.

Historical Background

The state of Jammu and Kashmir has a unique status in the Indian Union. Unlike other Indian states, it has a separate constitution. An elected government presently rules the erstwhile Princely state. The current status is based on the “Instrument of Accession” signed by the then ruler of the state, Maharajah Hari Singh, with the Government of India on 27 October 1947.

In pursuance of the terms and conditions of the Instrument of Accession, the state was accorded special constitutional relationship, not given to any other state. The next major milestone in cementing the special relationship was on 26 January 1950, when the new Indian Constitution drafted by a Constituent Assembly came into effect. Article 370 in the Indian Constitution defined the special relationship of the state with the Indian Union. It also defined the mechanism for managing centre-state relations with specific reference to J&K.[i]

The genesis of recent conflicts in Jammu and Kashmir can be traced back to the British colonial period in Indian history. In 1846 the British Government transferred the province of Kashmir to Maharaj Gulab Singh of Jammu under the Treaty of Amritsar. J&K was one of the many Princely states under the colonial rule till 1947 when all the rulers of the Princely States were given an option to accede to either of the two dominions, India or Pakistan, or become independent under the Indian Independence Act 1947.

Maharajah Hari Singh, the then ruler of the princely state, could not make up his mind about which option to exercise. The option to declare independence was more theoretical than practical at that time.[ii] No state was in a position to politically or economically survive on its own without acceding to either of the two dominions, India and Pakistan. Most of the states had little difficulty in deciding to accede to one or the other. However, the ruler of the border state of Jammu and Kashmir was faced with a dilemma.

He had problems acceding to either of the two dominions. He was aware that Pakistan founded on the basis of Muslim majority would never allow him to continue as a ruler because he was a Hindu. He would have preferred to accede to secular India, but he had problems with India too! He had no love lost for the erstwhile leaders of the Indian National Congress, who had spearheaded the freedom struggle.

They were now the new rulers of the country.[iii] They had consistently opposed and agitated against the rule of the princes. They were known supporters of Sheikh Mohammed Abdullah, the popular Kashmiri leader, whom the Maharahah had thrown in jail for agitating against his rule. He was in a no win situation.  Unable to make up his mind, the Maharajah decided to buy time by entering into what is known as a “Standstill Agreement” with Pakistan for the maintenance of essential supplies like food, salt, kerosene and petrol, and for the continuance of essential services including railway, telegraph, banking.

But Pakistan did not trust the Maharajah. It did not want to give the ruler time to consolidate his position by honouring the agreement. Notwithstanding clear terms and conditions of the Agreement, it tried to put pressure on the ruler to accede to Pakistan by stopping most essential supplies. When the Maharajah refused to buckle under these pressure tactics and accede to Pakistan, and instead made detailed protests, it finally invaded it on

October 20 1947 with the assistance of armed tribal marauders from the North West Frontier tribal areas. The raiders caught the ram-shackled state army completely by surprise. Pakistan was aware that the state army was in no position to defend itself against the much better trained and equipped Pakistan army and the tribal raiders. The state army was trained more to perform ceremonial functions than trained to fight a professional army.

The raiding army crossed into the state on 22 October 1947 within a few days of entering into the Standstill Agreement. The combined force advanced towards the state capital in a lightening speed. The Maharajah fearing for his state had to flee Srinagar, the state capital. He appealed to the Indian government to defend him against the advancing army.

The ruler of J&K then signed “the Instrument of Accession” on 26 October 1947. A contingent of the Indian army was flown to defend Srinagar thereafter. The raiding army was repulsed and the Indian army started advancing on most fronts. India went to the United Nations on 1 January 1948 with a complaint of aggression by Pakistan under Article 35 of Chapter VI of the Charter. Within weeks, Pakistan filed a counter-complaint against India. Among other things it accused India of aggression in two other Princely states: Junagadh and Hyderabad. A Security Council resolution of 17 January 1948 called upon both India and Pakistan to “improve the situation”.

On 20 January 1948 the Security Council resolved to set up a UN Commission for India and Pakistan and directed it “proceed to the spot as quickly as possible”. Another UN resolution of 13 August 1948 proposed a Cease Fire Order (PartI), barring any augmentation of armed forces, organized or disorganized, to be followed by a Truce Agreement (PartII) calling for the withdrawal of all Pakistani troops as well as the tribal invaders and other Pakistani combatants from J&K.

The territory so evacuated was to be administered by Local Authorities of the State under surveillance of the UN Commission with such Indian military assistance as might be considered necessary by the Commission. The bulk of the Indian forces were then supposed to be withdrawn from the State subject to such numbers as might be required to safeguard peace, law and order. After implementation of the above, steps were to be taken under Part III to ascertain the will of the people regarding the future of the State, as elaborated in another UN Resolution adopted on 5 January 1949.

The operative part of the 5th January Resolution reads: “A plebiscite will be held when it shall be found by the Commission that ceasefire and truce agreement set forth in Parts I and II of the Commission’s Resolution of 13 August 1948 have been carried out and arrangements for the plebiscite have been completed”. These arrangements were to include the return of all those who had fled the state following the disturbances in the wake of the attack by Pakistan. As Part I and II of the Resolution were never implemented, Part III has not been implemented.

All the mediatory efforts made since by the UN Commission and other countries have failed to break the impasse between India and Pakistan over Jammu and Kashmir.  At the time of ceasefire in January 1949, Pakistan had large part of the State in its occupation. They remain in Pakistan’s occupation till today. The Pakistan occupied areas include: the Northern Areas, Baltistan and part of Kashmir. Pakistan launched another military operation against the State on 31 August 1965.

This war between India and Pakistan too failed to solve the dispute one way or the other. The 16-day war ended in a virtual stalemate, though both sides claimed victory. The war ended with the “Tashkent Declaration’ brokered by the Soviet Union in September 1965. The 1971 war or the latest military attempt by Pakistan in Kargil to solve the problem through military means has also failed.  Demography in both the parts of the State, administered by India and Pakistan, has undergone big changes since 1947.

Large-scale communal violence between Hindus and Muslims at the time of the partition of the country led to large migrating of population from one part to another.[iv] This cross-border migration included the state of Jammu and Kashmir. On the Indian side of the state, a large number of Kashmiri Pandits (Hindus) have since the nineteen-nineties been forced to leave the valley, and many of them are living in the refugee camps in Jammu and other parts of India.

No other state in India has been given autonomous status like Jammu and Kashmir. However, the tribal areas in the country have been granted special status in the Indian Constitution. Schedule V and Schedule VI in the Constitution provide for the constitution of Autonomous Councils in these tribal areas. The Fifth Schedule under Article 244(1) of the Indian Constitution makes special provisions for the “administration and control of Scheduled areas and Scheduled Tribes.

The tribal areas in India’s northeast in the states of Assam, Meghalaya, Tripura, and Mizoram are covered under the Sixth Schedule under Article 244(2) and 275(1) of the Indian Constitution. While the Fifth Schedule is applicable to the Scheduled areas and tribes to all states in the country, it excludes the four states in the northeast. Under these two schedules, the State Governor, an appointee of the President of India, has been given special responsibility about the administration of the tribal areas. He has to submit an annual report to the President of India regarding the administration in these areas.[v]

A Review of Article 370

The process of Constitutional integration of J&K state is a gradual and consistent process. It had received many milestone modifications and still, many are left to be received. Although the State of Jammu and Kashmir has its own Constitution the application of the Indian Constitution is being extended gradually. With J&K’s accession to India in 1947, it became necessary to define the constitutional relationship.

This was done by the adoption of Article 370 in the Indian Constitution. It defines the mechanism for managing center-state relations with specific reference to J&K. Article 1 and the First Schedule of the Constitution governs the state’s integration.

First Schedule of Indian Constitution enlists J&K in the list of states and defines that “the territory which immediately before the commencement of this constitution was comprised in the Indian State of Jammu and Kashmir” [vi] is the integrated part of Indian Union.

Article 370 is embodied under chapter XXI labeled as, ‘Temporary provisions with respect to the State of Jammu and Kashmir’.

The prelude of this section i.e. “Notwithstanding anything in this constitution” is seldom used in the Constitution. This indicates that regardless of any other provision this section will be applied independently i.e. does not require any support from any other provisions for its enforceability.

Clause (a) provides that “the provision of article 238 shall not apply in relation to the State of Jammu and Kashmir. All the princely States that had acceded to the Indian Dominion were labeled as Part ‘B’ States in the Constitution of India. Jammu & Kashmir State was thus also a Part ‘B’ State. However, while all the princely States had accepted the Constitution of India, Jammu & Kashmir had reserved the right to frame its own Constitution.

Since Article 238 was meant to govern the constitutional relationship between the Union and the princely States, it could not be applied to Jammu & Kashmir State. Furthermore, Article 238 was deleted by the Constitution (Seventh Amendment) Act, 1956, when the scheme of reorganization of all States on the basis of language involved not only changes in boundaries of several of the existing States but also the abolition of the classification of the Part ‘B’ States.[vii]

Article 370 1(b)(i) and 1(b)(ii) limits the power of the Parliament to make laws for J&K. It extends to only “those matters in the Union List and the Concurrent List which, in the consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the state” to the Indian Union.

Under (1)(b)(i) Indian Parliamentary laws on the subjects mentioned in the two said Lists conforming to Defense, External Affairs and Communications  the matters conceded to India by the Instrument of Accession  need ‘consultation’ with the State Government; under (1)(b)(ii), Parliament’s laws on all other subjects will require the State’s “concurrence” before they are applied to the State.

In this section the meaning of ‘concurrence’ is crystal clear i.e. no law can be made without the consent of the state government, but the meaning of consultation’ depends upon the prevailing political scenario and civil pressure made by J&K people. Till date, no decision has been taken by the Indian Union which does not concord with the consultation or the advice of the state government. Immunity of the state is extended even if the fundamental rights are inflicted.

The Government of India cannot enforce any law connected with Jammu and Kashmir without the approval or concurrence of the State Government. Only defense, external affairs, and communications fall in the central list. The dangerous consequences have been witnessed in recent years when the law prohibiting misuse of religious places could not be extended to Jammu and Kashmir with the result the state does not come within the ambit of secularism.

And even after the independence, the ignoble thing happened in Kashmir where hundreds of temples were destroyed and where people belonging to a particular community were victimized and subjected to cruelties. Actually ‘consultation’ in clause (1)(b)(i) only means ‘concurrence’ of clause (1)(b)(ii). Ergo, any legislation of the Indian Parliament can, in practice, be applied to Jammu & Kashmir State only if it gets the stamp of approval from that State’s government.

(1)(c) provides that provisions of article 1 and of this article shall apply in relation to that State and hence making J&K as an integral part of India

(1)(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

 Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

Clause(2) If the concurrence of the Government of the State referred to in paragraph (ii) Of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

The interpretation sought to be placed was that Under Art. 370(1 )(d.), the power of the President is expressed by laying down that provisions of the Constitution, other than Article (1) and Article 370 which, under Art. 370(1) (c), became applicable when the Constitution came into force, shall apply in relation to the State of Jammu & Kashmir subject to such exceptions and modifications as the President may by order specify.

What the President is required to do is to specify the provisions of the Constitution which are to apply to the State of Jammu & Kashmir and, when making such specification, he is also empowered to specify exceptions and modifications to those provisions. As soon as the President makes such specification, the provisions become applicable to the State with the specified exceptions and modifications. [viii]

The specification by the President has to be in consultation with the Government of the State if those provisions relate to matters in the Union List and the Concurrent List specified in the Instrument of Accession governing the accession of the State to the Dominion of India as matters with respect to which the Dominion Legislature may make laws for that State. The specification in respect of all other provisions of the Constitution under sub-clause (d) of clause (1) of Art. 370 has to be with the concurrence of the State Government.

Any specification made after such consultation or concurrence has the effect that the provisions of the Constitution specified with the exceptions and modifications become applicable to the State of Jammu & Kashmir.[ix]  The meaning of the word ‘modification” used in Art. 370(l) has been given the widest effect and in that sense, it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as donot make any “radical transformation.”[x]

Hence this can be said that  Clause (1)(d) regarding applicability of provisions of the Indian Constitution to Jammu & Kashmir is based on the same principle of clauses (1)(b)(i) and (1)(b)(ii) pertaining to application of Parliamentary laws to that State. Ergo, none of the other constitutional provisions shall be applied without the concurrence or without the approval of the state government.[xi]

 (3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause(2) shall be necessary before the President issues such a notification.

The purpose of introducing clause 3 of Article 370 was to empower the President to exercise his discretion in applying the Indian Constitution and This clause clearly envisages that the article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President make a direction to that effect.[xii]

As aforesaid, constitutional integration is still in process in pursuance of which many constitutional exemptions are conferred over J&K state. J&K is the most autonomous state in the country.  Applicability of Certain paramount central statutes, which are Indian Penal Code 1860,[xiii] The Prevention of Corruption Act, 1988, The Religious Institutions (Prevention of Misuse) Act, 1988, The Delhi Special Police Establishment Act, 1946, The Commissions of Inquiry Act, The Protection of Human Rights Act, 1993 The Unlawful Activities (Prevention) Act, 1967, The Representation of the People Act, 1950 and 1951[xiv], is not extended to the state of J&K.

Though it is stated in the schedule 1 of the Indian Constitution that J&K is the constituent part of India like other states but because of Article 370 many constitutional exemptions are made in favor of J&K and hence confiding J&K with the inferior status to that of other status and creating a unique relation of this state with the Indian Union.

Article 370 is a special clause of temporary nature in Indian Constitution, a prize that was extracted out of India in 1950  by Sheikh Mohammed Abdullah for throwing his lot with India, after lengthy negotiations with Indian leaders. Article 370 made Jammu and Kashmir a country within a country, with its own flag, emblem, constitution, and Sadr-i-Riyasat (Prime Minister).

Many leaders of independent Bharat opposed the incorporation of art370, The architect of the Indian Constitution, Dr. Ambedkar, opposed granting Article 370 but it was on India’s first Prime Minister Jawaharlal Nehru’s insistence and personal guarantee that it was granted to the state.[xv]

As discussed before, this Article specified that except for Defence, Foreign Affairs and Communications, the Indian Parliament needed the State Government’s concurrence for applying such laws to Jammu and Kashmir. Over the years, this procedure was followed to bring the state under the purview of Article 356, the Supreme Court, the Election Commission, the Comptroller, and Auditor General, thus providing some level of order in the state.

That Article 370 was a temporary arrangement is evident from its wording, which allows its abrogation by the President of India in consultation with the now long-defunct Constituent Assembly. The Constituent Assembly was dissolved in 1957 prior to the first State Assembly elections and after it ratified the state’s accession to India and framed the state’s constitution.

As J&K is the most autonomous state of the Indian Union because of which the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. There are incidences when injustice was conducted to the minority population of J&k. Many laws were made which even infringes their human rights. No law of India can be extended to J&K by virtue of Article 370 unless the J&K government extends it by an Act of the State Legislature.

J&K is still ruled by its Juvenile Justice Act of 1997. And the Ministry of Women and Child Development of the Government of India cannot implement child protection programmes as required by the UN Convention on the Rights of the Child, simply because J&K refuses to even implement the 1997 instance of the attempt of bringing the chaos in order.

The J&K Right to Information Act, among others, vests more powers in the State government than provided in the Central Act. As reserving seats for women in the Panchayat appears to be something of a taboo, J&K has no Domestic Violence Act which has been enacted in mainland India.[xvi]

Separatists make no mention about the minority Sikhs and Hindus who migrated to J&K in 1947 from West Pakistan. These minorities are not considered as citizens of Jammu and Kashmir under Article 6 of the Jammu and Kashmir Constitution as they came from outside of undivided Kashmir. This is in contrast to the rights guaranteed under the Jammu and Kashmir Resettlement Act, 1982 for those who had left for Pakistan from undivided Kashmir.

Major trouble began when The National Conference led by Sheikh Abdullah used the leeway granted to it by India to grab all the seats of the Constituent Assembly, squeezing out representatives of Jammu and Ladakh, and those of Kashmiri Hindus and Sikhs. The Praja Parishad candidates in Jammu found their election papers rejected because of which misgivings of Non-Muslim and residents of Jammu and Ladakh were ignored.[xvii]

With the passage of time, The Constitution (Application to Jammu and Kashmir) Order, 1954 and many other constitutional orders were promulgated by the President of India in consultation with the Government of J&K, regulating the constitutional status of the State; and apart from it several Central laws got extended to the J&K State and even the nomenclature of Sadar-i-Riyasat and Prime Minister were changed to Governor and Chief Minister on March 30, 1965.

After the defeat of Pakistan and emergence of Bangladesh situation in this part of the world had changed significantly. These changes had an impact on J&K also. Sheikh Abdullah demonstrated his willingness to join mainstream. After prolonged parleys, on 13 November 1974.  Kashmir accord signed between Sheikh Abdullah and Mrs. Indira Gandhi (Beg Parthasarthy Accord).

Section 3 of this accord said, “Where any provision of the Constitution of India had been applied to the State of Jammu and Kashmir with adaptations and modifications, such adaptations and modifications can be altered or repealed by an order of the President under Article 370, each individual proposal in this behalf being considered on its merits; but provisions of the Constitution of India already applied to the State of Jammu and Kashmir without adaptation or modification are unalterable.

Section 4 of it says “With a view to assuring freedom to the State of Jammu and Kashmir to have its own legislation on matters like welfare measures cultural matters, social security, personal law and procedural laws, in a manner suited to the special conditions in the State, it is agreed that the State Government can review the laws made by Parliament or extended to the State after 1953 on any matter relatable to the Concurrent List and may decide which of them, in its opinion, needs amendment or repeal.

Thereafter, appropriate steps may be taken under Article 254 of the Constitution of India. The grant of President’s assent to such legislation would be sympathetically considered. The same approach would be adopted in regard to laws to be made by Parliament in the future under the Proviso to clause 2 of the Article. The State Government shall be consulted regarding the application of any such law to the State and the views of the State Government shall receive the fullest consideration.”[xviii]

Section 5 made a significant point. It says, “As an arrangement reciprocal to what has been provided under Article 368, a suitable modification of that Article as applied to the State should be made by Presidential order to the effect that no law made by the Legislature of the State of Jammu and Kashmir, seeking to make any change in or in the effect of any provision of Constitution of the State of Jammu and Kashmir relating to any of the under mentioned matters, shall take effect unless the Bill, having been reserved for the consideration of the President, receives his assent; the matters are:

(a) The appointment, powers, functions, duties, privileges and immunities of the Governor, and

(b) The following matters relating to Elections namely, the superintendence, direction and control of Elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discrimination, adult suffrage and composition of the legislative Council, being matters specified in sections 138, 139 140 and 50 of the Constitution of the State of Jammu and Kashmir.[xix]

By and large the provisions of Part XII of the Indian Constitution dealing with Finance etc apply to the State in the same manner as they apply to other states in India. By the Constitution (Application to Jammu and Kashmir) Second Amendment Order 1958, the jurisdiction of Auditor-General and Comptroller of India was extended to the State by making Entry 76 of List I under the Indian Constitution applicable to the State. Because of disturbed conditions prevailing in the State, it has very limited financial resources of its own. It depends heavily on the central grant to meet even its routine administrative expenditure. For development expenditure it depends almost entirely on the Central grants. The State has been classified as a special category state and receives 90% of its Plan (development) funds as central grant.

The State recruits its own staff for all tiers of administration, except the higher posts in the civil service and police service that are manned by members of the state cadre of the two All India Services, Indian Administrative Service and Indian Police Service.

Apart from the constitutional and legal provisions, as enumerated elsewhere, the autonomy arrangements are entrenched through the various democratic institutions of the State. Public opinion has asserted time and again to persuade the Government of India to enter into Agreements with the popular leadership in the State. The Supreme Court of India is the final arbiter of any dispute between the state and the union government about the autonomy arrangements made under the provisions of the Indian constitution.[xx]

Contemporary Scenario

The state of Jammu and Kashmir has a unique status in the Indian Union. Unlike other Indian states, it has a separate constitution. An elected government presently rules the erstwhile Princely state. The current status is based on the “Instrument of Accession” signed by the then ruler of the state, Maharajah Hari Singh, with the Government of India on 27 October 1947.

In pursuance of the terms and conditions of the Instrument of Accession, the state was accorded special constitutional relationship, not given to any other state. The next major milestone in cementing the special relationship was on 26 January 1950, when the new Indian Constitution drafted by a Constituent Assembly came into effect. Article 370 in the Indian Constitution defined the special relationship of the state with the Indian Union. It also defined the mechanism for managing center-state relations with specific reference to J&K. Other important milestones on the way to the current status have included:

  • The Presidential Order of 1950
  • The “Delhi Agreement” of 24 July 1952
  • The Jammu and Kashmir Constitution that came into force on 26 January 1957
  • 43 Constitutional Orders (applicable for Jammu and Kashmir) issued in 1954, 56, 58, 60, 61, 63, 64, 65, 66, 67, 68, 69
  •  The 1975 Agreement (based on the review of autonomy arrangements)
  • The 1985 Order, restoring the Union’s residuary powers under Article 248, Entry 97 of the Union List

 Even after all these years, the issue of autonomy is far from being resolved. In 1996 the newly elected government in Jammu and Kashmir set up a State Autonomy Committee to resolve the issue. Its terms of reference were to recommend measures for the restoration of state’s autonomy, necessary constitutional safeguards to render the arrangement inviolate, and “measures to ensure a harmonious relationship for the future between the State and the Union”.[xxi]

The State Autonomy Committee submitted its report in April 1999 and recommended a return to the position that obtained in 1953, that is, before the arrest of Sheikh Mohammed Abdullah, the then Chief Minister, in August 1953. It, however, made an exception with regard to Part XII of the Indian Constitution, pertaining to finance, property, contracts, and suits (Articles 264 to 300A). The Committee noted that in order to make the state financially viable it needs more financial resources and assistance.

It, therefore, recommended that the matter is discussed in depth between the representatives of the State and the Union governments before taking any final decision. A second Regional Autonomy Committee was also appointed in1996 to satisfy the regional aspirations of Jammu and Ladakh and of distinctive communities within these sub-regions. How sensitive and complex this issue is can be judged from the fact that no agreement could be reached even among the members of this Committee.[xxii]

The Committee got divided into regional and political lines and could not submit a unanimously agreed report. However, three members of this Committee went ahead and submitted a report in April 1999. The report underlined the ethnocultural diversity of Jammu and Kashmir and argued that the autonomy arrangements should not perpetuate hegemony of one region over the other regions.

The three members proposed two options: the first option was the division of the state into eight new regions: three in the valley, Doda plus the Chenab area, Jammu, Rajauri-Poonch (Peer Panjal), Kargil and Ladakh; the second option was to adopt the existing districts as units of devolution through a strengthened ‘panchayti raj structure’ (local government in the rural areas) with agreed financial, linguistic and cultural safeguards.

The then Government at the Centre summarily rejected “autonomy”, but said it was willing to discuss the “devolution arrangements”.  A Leh Autonomous Council was constituted in 1996, and since then is working well. On the lines of this council, the Kargil Autonomous Council was constituted in 2003. The state government took another step by announcing the formation of eight new districts in the state in 2006 in the three sub-regions of Jammu, Kashmir and Ladakh in the same direction to make the administrative districts more efficient and compact.

The issue of regional autonomy for Jammu and Kashmir has been a matter of periodic discussion and controversy and was variously addressed in the past by the Glancy, Gajendragadkar and Sikri Commissions. The issue, however, has not been completely resolved until today. Only very recently, in September 2007, Chief Information Commissioner of the Indian Government, who is known to command the confidence of some separatist leaders, has proposed to the Prime Minister of India new formulae for resolving the impasse over the autonomy issue.

He has proposed a three-tier structure on the model of Panchayati Raj (local government) under the 73rd Constitutional Amendment Act of the Indian Constitution. In his proposal, he has recommended a three-tier structure to include the setting up of a regional council on a geographical basis, an elected Zila shoora (district council), and halqa majlis and halqa panchayats at the sub-divisional and village level.

According to the proposal, the development plan and the budget are to be proposed by the halqa panchayat and approved by the halqa majlis. Although the Panchayati Raj Act was passed in Jammu and Kashmir even before the 73rd Amendment of the Indian Constitution came into force for the rest of the country, the state legislation did neither provide for an independent Election Commission for conducting elections to the panchayati raj institutions, nor a mechanism to decide about the devolution of financial resources like the constitution of a Finance Commission as in the Indian model.

If accepted the proposed scheme would ensure greater participation of the people and more autonomy for the state. As development funds come mainly from the Union government, they can be diverted directly to the local self-government institutions without going through the state government. Under this scheme of things, the state government would not be able to favor the majority region and discriminate against the smaller regions. It may be pointed out that while all sub-regions, except the valley, would be satisfied with more autonomy for their regions, the Valley leadership is divided between the supporters for more autonomy and those supporting the demand for independence and separation from the Indian Union.

The separatists have been boycotting all elections in the State. Negotiations are presently going on to reach a settlement with the political parties in the valley as well as in the other sub- regions.  Another complication has been created by the fact that the Muslims of the valley are in majority and control the levers of power in the state.[xxiii] The other ethnic groups complain of being neglected and discriminated against by the majority community. Therefore, these groups who are in majority in the other sub-regions, demand more autonomy for their sub-region from the state government. The valley is not only a politically dominant region but is also economically a rich area.

While land in the valley is fertile and it has a flourishing economy, the vast ice-bound barren mountains of Ladakh produce little economic wealth. The people of this vast sub-region, many times larger than the valley area, have remained poor.[xxiv] They blame the state government for their poverty and backwardness, and demand Union Territory status outside the state.

Thus, two autonomy movements are simultaneously going on in the State, one demanding more autonomy from the Union government and the other demanding more autonomy from the state government. Jammu and Ladakh regions demand more autonomy from the state government but would be quite happy being part of the Indian Union.  To resolve the issue of more autonomy for the state government, negotiations are currently on between the Union government and the political parties in the state. If successful, there is a likelihood of a repeal of all the Presidential Orders issued since 1953 that had curtailed autonomy for the state government[xxv].

THE MOST AUTONOMOUS STATE OF INDIA

With Jammu and Kashmir’s accession to India in 1947, it became necessary to define the constitutional relationship. This was done by the adoption of Article 370 in the Indian Constitution. It defines the mechanism for managing center-state relations with specific reference to J&K. Article 1 and the First Schedule of the Constitution governs integration.

Article 370 limits the power of the Parliament to make laws for J&K. It extends to only “those matters in the Union List and the Concurrent List which, in the consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the state” to the Indian Union.

First Schedule of the Indian Constitution lists Jammu and Kashmir, which is defined as “the territory which immediately before commencement of this constitution was comprised in the Indian State of Jammu and Kashmir”.

Emergency Powers under the Constitution of India contemplate three type of emergencies when the state government can be dismissed and ruled directly by the Union government: emergency arising out of war or internal disturbances; breakdown of constitutional machinery in the state; and financial emergency.  However, in case of Jammu and Kashmir, the powers of the Union government are limited. For example, unlike other Indian states, in case of emergency against internal disturbances in J&K under Article 352 of the Indian Constitution, the promulgation of emergency can be done only “at the request or with the concurrence of the government of the State”.

Presidential Orders extending the Indian Constitution to Jammu and Kashmir included two schedules specifying Parliament’s competence to legislate for the State. The first schedule specified 35 Union entries under the heads of Defence, External Affairs and Communications plus two modified entries pertaining to the Railways and Audit. The State and Concurrent Lists were excluded and all residuary powers were vested with the State.

The second schedule extended the Centre’s powers to certain other matters including the jurisdiction of the Supreme Court of India.  In subsequent Orders in 1958-60 Union Powers were further extended to the State by creating a state cadre of the All India Service, and fully extending the jurisdiction of the Auditor and Comptroller General, Election Commission and Supreme Court of India. The permit system that restricted entry of Indian nationals from other parts of the country into the Jammu and Kashmir was abolished on 1 April 1959.

In 1964, the Emergency Articles 356 and 357 of the Indian Constitution were extended to J&K. In 1965, the State enacted legislation adopting the nomenclature Governor and Chief Minister, as in the other Indian states, for Sadar-Riyasat and Wazir-e-Azam used earlier for the head of the state and head of the government. The Governor has since been nominated by the President, as in other Indian states and not elected by the State Legislature. In 1986, Article 286 was made applicable, enabling the Indian Upper House, Rajya Sabha, by a two-thirds majority to resolve that Parliament may in the national interest enact legislation under the State List. In 1989, the 10th Schedule of the Indian Constitution pertaining to defection by the members of state assembly was made applicable to the State.

The Supreme Court held in 1984 that J&K “holds a special position in the constitutional set up of our country”. It went on to explain the ambit and meaning of Article 370 and the Constitution (Application to Jammu and Kashmir) Order 1950, promulgated on 26 January 1950 in accordance with the provisions of Article 370 and opined that it was thus that “the basis for a constitutional relationship between the Union and State was defined”. In 1962 the responsibility for holding elections in the state was transferred from the State election machinery to the Central Election Commission.[xxvi]

Constitution Of Jammu And Kashmir- Jammu and Kashmir alone of all the Indian States has a constitution of its own. The Constitution is a written document, having 158 sections and six schedules. The Constitution was adopted on 17 November 1956 but came into force on 26 January 1957.  There is an organic nexus between the Indian and J&K Constitutions.

The preamble to the Constitution of Jammu and Kashmir states that it was drawn up “in pursuance of the accession of this state to India”, and more specifically it is clearly stated in Section 3, that “the State of J&K is and shall be an integral part of the Union of India”. Section 4 defines the territory of the State “all the territories which on 15 August 1947 were under the sovereignty or suzerainty of the Ruler of the State”. In other words, it means to include all the territory in the occupation of Pakistan and that ceded to China by Pakistan under an agreement J&K Constitution initially provided for legislative assembly with 100 seats, 25 of these being reserved for Pakistan- administered area.  In the text of the Constitution of J&K, restrictions have been placed on the State legislature to unilaterally make any changes in the powers of the Union.

Section 5 stipulates that the legislative and executive powers of the State “extend to all matters except with respect to which Parliament has the power to make laws for the State under the provisions of the Constitution of India”. Section 147 relating to the powers of amending the Constitution stipulates that “no bill or amendment seeking to make any change in (a) this section; or (b) the provisions of Sections 3 and 5; or (c) the provisions of the Constitution of India as applicable in relations to the State shall be introduced or moved in either house of the legislature”.

Section 10 of the J&K Constitution vests permanent residents of the State with the fundamental rights guaranteed by the Indian Constitution.  The Union Parliament, however, has no power under the Indian Constitution to make laws with regard to the citizenship of the State, though the State has no separate citizenship. There is no dual citizenship. The citizens of the state have no other citizenship except citizenship of India.

However, the State citizens were given the special status of “permanent residents of the State”. It is the J&K Constitution that defines state subjects (permanent residents), who alone have the right to vote and hold property in the state. Presidential Orders 1950 extending the Indian Constitution to J&K includes two schedules specifying Parliament’s competence to legislate for the State.

The first schedule specified 35 Union entries under the heads of Defence, External Affairs and Communications plus two modified entries pertaining to Railways and Audit. The State and Concurrent Lists were excluded and all residuary powers vested with the State. The second schedule extended the Centre’s powers to certain other matters including the appellate jurisdiction of the Supreme Court.

Some important decisions were taken by the J&K Constituent Assembly, even before the finalization of the Constitution, like a separate flag for the State and its own nomenclature for the head of the state and the head of the government. The central concurrence was obtained under what is called “the Delhi Agreement of 24 July 1952”. It entitled the state to have its own flag and emblem in addition to the Indian national flag and have its own President – Sadar-i Riyasat.

The Sadar-i-Riyasat (President of the State) was to be elected by the State legislature but had to be a person acceptable to the Centre and appointed by the President of India.  Certain other matters settled by the J&K Constituent Assembly were incorporated in the Indian Constitution through a Presidential Order of 14 May 1954. Indian fundamental rights were applicable subject to such “reasonable restrictions” as the State legislature might deem reasonable.  There was a customs barrier between the State and the rest of the country. That was removed in 1954 before the promulgation of the 1954 Presidential Order.

The Union powers were later extended in various areas of administration. As the State was unable to meet the requirement of development expenditure from its own relatively meager resources, it was categorized as a special category state that entitled the State to financial grant from the Centre. Currently this grant is pegged at 90 % of the development expenditure under the Central Plan. A state cadre of the All India Services, the Indian Administrative Service and Indian Police Service was constituted, and the jurisdiction of the Auditor and Comptroller- General, Election Commission and the Supreme Court were fully extended in 1958,1959, and 1960 respectively.

The permit system that restricted entry of Indian national from other parts of the country to J&K was abolished on 1 April 1959. In 1964, the Emergency Articles in the Indian Constitution, Article 356 and 357 were extended to J&K. In 1958, the State enacted legislation adopting the nomenclature Governor and Chief Minister, as in the other Indian states, in place of Sadar-i- Riyasat and Wazir-e- Azam agreed to earlier. The Governor is since being nominated by the President, as elsewhere in the other Indian states, and is no longer elected by the State Legislature. The appointment and tenure of the Judges were similarly brought on par with that prevailing in the rest of the country.[xxvii]

BASIC POLITICAL STRUCTURES OF THE AUTONOMOUS GOVERNMENT

The Governor is the Head of the State and nominally exercises all executive powers. However, under the Constitution he is required to act under the advice of the Council of Minister. He appoints the Chief Minister, but here again his power is not absolute, because the Chief Minister cannot continue unless he commands the confidence of the State Legislative Assembly. The other ministers in the Council of Ministers are appointed by the Governor, but on the advice of the Chief Minister.

Under the emergency provisions of the State Constitution, sections 91 and 92, if the situation is such that government cannot be carried on in accordance with the constitution, the Governor can, with the concurrence of the President, assume the executive and legislative functions of the state.  Under the earlier Jammu and Kashmir Constitution of 1939 during the colonial period, all powers “executive, judicial and legislative” were vested in the ruler. This changed with the promulgation of the new constitution in 1957, and these powers have been separated. Executive.

The Chief Minister is the de facto head of the executive. He has a Council of Ministers. The Chief Minister and all the ministers in the Council of Minister are, however, accountable to the State Legislative Assembly and retain power only as long they retain its confidence. The Chief Minister and the Ministers in the Council are assisted by a permanent civil service of the State. Chief Secretary heads the state bureaucracy, and a Secretary heads the various administrative departments. The Chief Secretary, the Secretaries of the various Departments and other senior civil servants are appointed from the State cadre of the Indian Administrative Service, an All India service.

The state is divided in three Divisions and 15 districts. Three Divisional Commissioners head the three Divisions, Jammu, Kashmir and Ladakh. The districts are headed by Deputy Commissioners. Districts are subdivided into Sub-divisions, Circles, and Panchayats (village councils) in the rural areas. Local bodies, panchayats and municipalities are administered through elected bodies, and if superseded by the State government through Administrative Officers appointed by the State government.

The state has a separate civil service, but it also has a separate state cadre for the two All India Services, the Indian Administrative Service and the Indian Police Service. Recruitment to the state civil service is done through a State Public Service Commission.[xxviii] While the Union government appoints members of the All India Services, who hold most of the senior posts, they are appointed to their posts by the state government. They are accountable to the ministers of the state government and not to the Union government.  Judicial. Independence of judiciary has been ensured through the separation of judiciary from the executive. The State’s judicial system can be divided into High Courts and Subordinate Courts.

The Subordinate Courts have again been sub-divided under the J&K Constitution into: District Judge, Additional District Judge, Assistant District Judge, Session Judge, Additional Session Judge, and Assistant Session Judge. Entry 78 of List I of the Seventh Schedule of the Constitution of India deals with the exclusive power of the Union Parliament to legislate on the constitution and organization of the High Courts in the Indian state. Under Presidential Order of 1950 this power of the Union Parliament was not exercisable with regard to Jammu and Kashmir. The organization of the High Court in the state of J&K, therefore, remained exclusively under the jurisdiction of the State.

However, the Supreme Court did have the original jurisdiction, as stated in Articles 131 and 132 of the Indian Constitution, to deal with the disputes between Government of India and the State of J&K or its disputes with other Indian states. The Supreme Court also had the appellate jurisdiction, but only with regard to constitutional questions. Initially, it had no other jurisdiction in the State, though this was changed later. The 1952 Delhi Agreement extended the jurisdiction of the Supreme Court to J&K. This was further extended under the Presidential Order 1954 and amendment to the Order issued in 1960. This made the Supreme Court the final court of appeal in all civil and criminal matters.

Appointment of a High Court judge is done by the President of India on the advice of a Presidium of senior judges of the State High Court and the Chief Justice of the Supreme Court of India. The judges can be transferred from J&K to other states in India and from other states to J&K by the President in consultation with the Governor of the State and the Chief Justice of the Supreme Court. The judges at other levels, however, cannot be transferred out of the State.

There is no difference between the national legal system and the legal system enforced in the state. It is the same system. Traditional, customary or tribal laws are not applicable in J&K. Based on adult franchise, the State has a three-tier electoral structure. All adults over the age of 18, male and female, elect members for i) national parliament (Lok Sabha), ii) state Legislative Assembly, and iii) local self governments (municipalities and panchayats). Political accountability is exercised primarily by the elected legislatures, though the judiciary has lately been playing a more proactive role. Civil society and media play an active and major role in this regard, but they have no legal or constitutional authority.

The State recruits its own staff for all tiers of administration, except the higher posts in the civil service and police service, that are manned by members of the state cadre of the two All India Services, Indian Administrative Service and Indian Police Service. Officers from the state service are eligible for promotion to the All India Services. In fact, half of the state cadre of these services has to be from the state service as stipulated in the recruitment rules. Moreover, almost one-third of the state cadre officers of the All India Services are posted on deputation to man the senior administrative posts with the Central Government.[xxix]

FINANCIAL AND ECONOMIC STRUCTURES AND INSTITUTIONS OF THE AUTONOMOUS GOVERNMENT

The State has its own Finance department, which is headed by a Minister. The main sources of revenue for the State are land revenue, sales tax, and excise tax. As tourism is the mainstay of the state economy, the state government has a large Tourist Department that runs many hotels, guesthouses and transport system. Land revenue is collected by the Deputy Commissioners of various districts. While large development projects are funded and supervised by the department  concerned, small development projects in the districts are mostly funded and supervised by the District Deputy Commissioner. The State is rich in horticulture and floriculture.

A permanent civil servant heads finance department, generally from the state cadre of the Indian Administrative Service. He is designated as “Secretary”. For collection of taxes like excise and sales tax the State has an Excise department under an Excise Commissioner and a Sales Tax Commissioner. Both of them are treated as subordinate offices of the Finance Department.

Due to disturbed conditions the State, it is unable to meet its financial requirements from its limited financial resources. It is heavily dependent on the Union government for grants. The financial structure of the state is divided under two heads: Plan and non-Plan. Plan side is financed by 90% grant from the Union Government. As the state is not able meet even the remaining expenditure, 10% of the Plan and all non-Plan expenditure, from its own resources, it frequently approaches the Union Government from time to time for ad hoc grants. Non-Plan expenditure covers all the administrative expenditure and development expenditure not included in the projects under the Plan head as approved by the Indian Planning Commission.

Collection of land revenue is under the District Deputy Commissioner who performs this task with the help of land revenue officers under him.  Income Tax, other than the agricultural Income Tax is levied and collected by the Union Government, but is shared between the Union and the State Governments according to ratio fixed on the recommendation of the Finance Commission of India from time to time. Service Tax is also levied by the Union Government, but is shared between the Union and the State governments.[xxx]  Security expenditure is met directly by the Union Government or indirectly by grants from the Union Government.

As the Police come under the State List, the expenditure on ‘police’ is met from the State budget.  It is a potentially rich state. Blessed with bountiful nature it is the most picturesque region in the entire Indian sub-continent. The mainstay of its economy used to be tourism. Its tourist potential can be compared with Switzerland. The Valley and the plains areas of Jammu have very fertile agricultural land. It is rich in horticulture and floriculture. It has huge, mostly untapped, hydroelectric resources that can produce relatively cheap electric power. The State is rich in arts and crafts.

Kashmiri carpets are sold all over the world. It has a thriving handicraft industry. Its saffron is world famous. Custom and Excise duty should give it huge revenue in normal times. But militancy and terrorism and endless violence have shattered the state’s economy.  The State is heavily dependent on the Union government to meet all its financial requirements. The state is not authorized to raise funds from external financial institutions.  The state budget is approved by the state legislature.

Additional grants are also sanctioned by the state legislature. Grants from the Union Government come from the Union budget, which is approved by the Indian Parliament. Within the State budget, the Chief Ministers, the Ministers in the Council of Ministers, the Chief Secretary, Departmental Secretaries and their subordinate officers, the Divisional Commissioners and the Deputy Commissioners are authorized to incur expenditure under prescribed scale. The scale of authority varies from the top to bottom in the administrative hierarchy.  There is no difference over the currency issues between the autonomous region and the national government. The currency of the State is the same.[xxxi]

Conclusion

Article 370 was included in the Constitution, not as an afterthought but after mature consideration by the Constitution- makers. It was a condition of Kashmir’s accession to India and if that accession is sacrosanct, the condition must also be sacrosanct. Kashmir did not obviously want to join Pakistan. Kashmir procrastinated between independence and accession to India and chose the latter. Accession to India was conditional on Kashmir retaining its distinct cultural and regional identity.

Article 370 assured the state all benefits of independent Kashmir without sacrificing the advantages of being a part of the larger Indian federation. It conferred maximum autonomy on Kashmir. Special provisions such as Article 370 of the Indian Constitution are necessary in a diverse country like India. But such special provisions must only do “positive discrimination” with regard to the vulnerable sections of the society.

With constitutional protections of India for minorities not applicable or constrained due to Article 370 had made the situation much worse as Hindus were eliminated from the economic organization of the State, its government and administration. The special status of the state has prevented the social and economic integration of Jammu and Kashmir with the other Indians as they are barred from legally purchasing property, establishing businesses, settling down there and obtaining voting rights.

Cocooned in this way, many Kashmiris have a heightened sense of grievance against the Indian state, mistakenly believing they are sovereign. Begin with; Article 370 has built emotional and psychological barriers between the people of Kashmir and the rest of India, thus fostering the psychology of separatism. Many renounced political leader is in the support of the abrogation of article 370 and according to them, abrogation of this article will prove to be an essential step to unite J&K with India and remove the discrimination to promote justice.

But as we know there is support for the existence and the extinction of this article. Abrogation of this article may lead to many repercussions. Repercussions like mass agitation, increase in terrorist activities, more violence in J&K, etc. But the Indian Union has to find a solution in this regard.

We, therefore, see that the state of Jammu and Kashmir has continued a process of constitutional integration with the union of India. This process may have been slow and long drawn as compared to other states, but it is irreversible. Though there are many impediments faced by this integration. This process needs to be accelerated so that the ultimate objective of complete integration as promised by leaders including  Prime Minister Jawahar Lal Nehru during the debates in the Constituent Assembly and subsequently in Parliament also. The unnecessary delay is creating avoidable confusion and doubts in the minds of vulnerable sections of the state population.

Formatted on March 13th, 2019.

[i] A.G. Noorani, “Article 370: A Constitutional History of Jammu and Kashmir” Oxford University press, 2011, pg 14

[ii]ibid.

[iii]ibid, pg 16

[iv]ibid.

[v] Justice A. S. Anand, “The Constitution of Jammu & Kashmir — Its Development & Comments” , third edition, Oxford University Press, 1998 pp. 98

[vi]Constitution of India,  First Schedule

[vii]Arvind Lavarkar , “The Truth of Article 370”,  Rambhau Mhalgi Prabodhini, Mumbai,  2005, Pg 3

[viii]M.P. Jain, ”Indian Constitutional Law”,  ed.6, Lexis  and Nexis Butterworths Wadhwa, Nadpur, Pg 950

[ix]Sampat Prakash vs State Of Jammu & Kashmir & Anr. 1970 AIR 1118, 1970 SCR (2) 365

[x]Puranlal Lakhanpal vs The President Of India And Others  [1962] 1 S.C.R. 688, 692

[xi]Supra note vii, pg 8

[xii]Ibid

[xiii] This is among the oldest Indian statutes and the most comprehensive criminal law in the country

[xiv] Jammu & Kashmir State has its own “People’s Representation Act, 1957” and “Representation of People (Conduct of Elections and Election Petitions) Rules, 1957; Anand, ibid, p.369

[xv] supra note 9, pg 355

[xvi] ibid

[xvii] Supra note 6, pg 57

[xviii]H.M. Seervai, Constitution Law of India, 3rd Edn. Vol. I, p.382, 9.114

[xix] ibid

[xx] V.N. Shukla, Constiution of India, 9th ed., Eastern Book Company, Lucknow

[xxi] Supra note 6, Pg 46

[xxii] ibid

[xxiii] Supra note 6, pg 114

[xxiv] Supra note 16, pg 325

[xxv] ibid

[xxvi] Supra note, pg

[xxvii] ikashmir.net visited on  20th April, 2014. Available at http://ikashmir.net/article370/chapter5.html

[xxviii] ibid

[xxix] Supra note 8, pg 125

[xxx] Supra note 16, pg 357

[xxxi]  Supra note 9, pg 125

One Reply to “Constitutional Integration of Jammu & Kashmir”

  1. A Look through the Mist
    Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 of 15 May 1954 and Article-35A ::: Daya Sagar

    This day debates over Art-370 of Constitution of India are shifting to Article 35A of the Constitution of India. Article 370 of constitution of India has been debated upon all these years. But there is also another Article in constitution of India that can be held more responsible for some controversies with respect to the affairs of Indian state of J&K and that article is Article 35A.
    The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 is said to have been issued by the order of President of India in exercise of the powers conferred by clause (1) of Article 370 of the Constitution of India, so as to add a new Article35A in the Constitution of India. For nearly 6 decades nobody has that particularly looked into the criticalities of the constitutional aspect of the President issuing the said order so as to amend the Constitution of India and may be due to such reasons it was only after 2008 that I initiated some deliberations on The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 and in a way the ‘birth’ of Art35A. The result has been that in the recent years some questions have been raised against Union of India for having unduly and unconstitutionally overstretched the jurisdiction of the President as available under Art 370 (1) of Constitution of India to the extent of not only amending the constitution but also to violate the basic principles & spirits enshrined in Constitution of India that otherwise can not be overstepped even by the Parliament of India under the provisions of Article-368 of COI ( Power of Parliament to amend the Constitution and procedure therefor – in exercise of its constituent power to amend the constitution by way of addition, variation or repeal of any provision of the constitution in accordance with the procedure laid down in the said article).
    Questions have been raised on the provisions contained in Article 35A. The good and bad can be debated. Let us not for the time being venture into the debates on the contents / text of the Art35A and instead see to the constitutional technicalities of adding this ( 35A) in the constitution of India. The goods / bad and the political reasons could be referred later.
    To be brief, Art-35A was added in the COI neither by the Constituent Assembly of India ( COI) nor by the Parliament of India under the constituent powers available vide Art368 but simply by an order of the President of India ( C.O 48 of 14 May 1954) issued after 4 years of adoption of COI. The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 that is said to have been issued in exercise of the powers conferred by clause (1) of Article 370 of the Constitution, by order of the President, so as to add a new Article 35A after Article -35 , is unconstitutional to the extent it says :—
    . “ 4 (j) : Part-III. After Article 35, the following new article shall be added, namely:—35A. Saving of laws with respect to permanent residents and their rights.—Notwithstanding anything contained in this constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,—………….., shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”
    Question here is ‘where’ has the new Article 35A been added? Without any doubt a new article by the name Art35A is said to have been added in the COI simply by a Presidential order and adding a new article in the constitution of India amounts to amending the constitution.
    Hence the contents of The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 as they relate to Art35A mean amending the constitution of India through an executive order, where as Clause (1) of Article 370 nowhere confers any power or delegation or authority, not even duty to suggest to the parliament to amend the COI. Where as it is only the Parliament that ,in exercise of its constituent powers, can add any new article or delete/ repeal any article in / from constitution of India and that too only under the provisions contained in Art-368 in accordance with the procedure laid down in this article (Art-368) but that too without violating the basic spirits underlying the COI..
    In nutshell Art 370, a temporary provision with respect to the State of Jammu and Kashmir, among other things also performs :
    (A.) the function of identifying the subjects ( matters) that would be considered as included in the Indian state of Jammu and Kashmir specific Union and State lists, the function that is otherwise performed by Article – 246 of Constitution of India {Subject-matter of laws made by the parliament and by the legislatures of the states (Part XI RELATIONS BETWEEN THE UNION AND THE STATES )} of the Constitution for other Indian states. To quote Art 370 (1) (b) says that the power of parliament to make laws for the said State shall be limited to—(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State;
    (B) and also lays down the procedure for the Parliament to legislate with respect to a matter in the J&K ‘specific State List’ in the national interest as is otherwise laid down in Art- 249 of Constitution of India for states other than the State of Jammu and Kashmir (Art 249. Power of Parliament to legislate with respect to a matter in the State List in the national interest). To quote: Art 370 (1) (b) (ii) says :such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
    So, there should be no doubt or confusion about the laid down provisions in Art 370 of COI of India and delegations there under made in favour of the President of India that as per the provisions made in para (i) and para (ii) of sub-clause (b) of clause (1) of the Art 370 President has to only declare the matters for what parliament has the power to make laws or the constitutional operations on such matters can be done only by the parliament and not by the president (that too through simple executive order). Adding a new article in the constitution of India amounts to amending the constitution. Hence, amending constitution of India by adding a new article (like Article 35A) as has been done under THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 by order of the president that says that “After article 35, the following new article shall be added, namely: “35A. ….. ” too is an act of amending the constitution. It is the phrase in the ‘text’ of C.O.48 ( “ following new article shall be added”) that has been put under question mark.
    Even Sub Clause (1d) of Art 370 (1-d) too is not for amending the constitution of India worth adding a new article. Adding a new article in constitution is an act of amending of constitution and can not be taken refuge (, as it appears to have been the case with adding a new Article 35A in Constitution of India ) even under sub clause (d) of clause (1) of Article-370 of Constitution of India, since the scope of this clause ( 370-1d) is limited to only such of the other provisions of the Constitution of India that already exist in the Constitution of India where as vide constitution application order of 1954 C.O. 48 a new Article 35A has been added in constitution of India. Although this aspect has not for about six decades attracted the attention of experts, but now since the possible constitutional inadequacies have been pointed out, adding a new article in the constitution can not be taken as simply nominating some exceptions and modifications w.r.t some provisions of the Constitution in relation to the Indian state of Jammu & Kashmir.
    Even with in the scope of sub- clause (d) of clause (1) of Article 370 { Art370 (1) (d) ..such of the other provisions of the Constitution shall apply in relation to J&K State subject to such exceptions and modifications as the President may by order specify but… } an order for adding a new article in the constitution can not be defended or taken refuge under such a provision ( Art 370 1-d ) that only allows modification of some existing constitutional provision and can not be used for amending the constitution of India to the extent of even adding a new article. An order , said to be under Art 370(1), for adding a new article in COI does not fall in the class of modifying an existing provision as provided in Art 370 w.r.t the Indian state of J&K
    When we discuss The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 with respect to adding Art35A in Constitution of India the question is not of modification of an existing constitutional provision but it is of adding a new article by amending the constitution. In the case under reference it could be said that the President has not simply ordered application to Jammu & Kashmir with exceptions and modifications of some provisions of Constitution of India ( that exist in the first constitution of India or have been incorporated in constitution of India by Parliament at some later date exercising the constituent power available under article 368) but has in a way overstretched his delegations so as to even amend the constitution. of India.
    In the PURANLAL LAKHANPAL Vs. THE PRESIDENT OF INDIA AND OTHERS case the apex court (Hon’ble Justice GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N., GUPTA, K.C. DAS, AYYANGAR, N. RAJAGOPALA Writ Petition No. 139 of 1957 under Art. 32 of the Constitution of India for enforcement of Fundamental rights. DATE OF JUDGMENT: 30/03/1961 ) held, that the word “modification” used in Art. 370(I) must be given the widest meaning in the context of the Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any “radical transformation”. Where as in this case ( in the case of Art35A) the question is not of modification of an existing constitutional provision but it is of adding a new article by amending the constitution and not of the President ordering some exceptions and modifications of some provisions of constitution of India ( that exist in the first constitution of India or have been incorporated in constitution of India by Parliament at some later date exercising the constituent power available under article 368) for direct application with regard to Indian state of Jammu and Kashmir. Similarly in the Writ Petition No. 11 of 1968 under Art. 32 of the Constitution of India for the enforcement of the fundamental rights, Sampat Prakash vs State Of Jammu & Kashmir & Anr Bench BHARGAVA, VISHISHTHA HIDAYATULLAH, M. (CJ) SHELAT, J.M. MITTER, G.K. VAIDYIALINGAM in judgement delivered on 10 October, 1968 the Hon’ble SC had observed to go with the judgement delivered by a larger bench in the case Puranlal Lakhanpal v. The President of India, 1962 but as said earlier that can also not be quoted here to justify the ‘validity’ of Art35A as far as its very existence ( not contents ) is concerned.
    The apex court constitutional bench has observed in the case of Puran Lal Lakshanpal “ thus, in law, the word “modify” may just mean “vary”, i.e., amend, and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu & Kashmir. We are, therefore, ‘of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation”. But this way also the said judgement of larger constitution bench cannot be used to justifying an unconstitutional and illegal amendment of the constitution of India done by an order of the President under Art 370(1-d) worth adding a new Article by name Art35A since it does not come under modification of the provisions in the constitution.
    It is true that Art 370 (1-d) says that President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify but it can be taken as making reference only to the provisions that exist in the constitution and can not be stretched to modifying the constitution itself i.e adding some new article in the Constitution of India as has been done by adding a new article 35A in constitution of India by issuing the Constitution application ( to Jammu and Kashmir ) order of 1954 C.O. 48 .
    No doubt , in addition to questions raised in foregoing paras the contents of Section-4(j) of the CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 are also being put under the question by some for being unconstitutional and void on the ground that it damages the basic structure of the Constitution and in a way goes beyond even the jurisdiction that Parliament has under the constituent power contained in Art 368 for amending the COI.
    Is Art-35A’s addition in the COI constitutionally valid ?
    Why 35A of Constitution of India is not included in the main body of the Constitution of India ?
    As regards the provisions contained in the text of Art 35A that has been added in constitution of India by a Presidential order , it can be said that the Article 35A has been added in Part-III ( Fundamental Rights ) of constitution of India . But it is not included in the main body of the Constitution of India and has been kept as Appendix-1 with the Constitution. When it is a new Article added in constitution, why is not it appearing in the ‘body’ of the Constitution, this also needs to be examined and opined upon legally?
    No doubt the contents of Art 35A are also against the basic underlying spirits of constitution of India since they intend to discriminate between citizens of India by conferring upon a state legislature / government authority to unquestionably encroach upon the fundamental rights ( Art 14,16,19 ) of others , a delegation or authority or discretion that does not even unconditionally rest in the Parliament .Such like discriminatory provisions are surely against the basic principles underlying the drafting of the Constitution of India and even the Parliament can not go for amendments / modifications that could be assessed as against the basic spirits underlying constitution of India. Therefore Section-4(j) of the CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 amending the constitution so as to add a new Article 35A in constitution of India could be said a unconstitutional and void even on the ground that it also damages the basic structure of the Constitution and goes beyond even the ‘constituent’ amending power of Parliament as contained in Art-368 of COI.
    In addition to being a unconstitutional provision that has remained unchallenged for over six decades, Art 35A does mentions even provisions that allow the J&K Legislature / state government to mercilessly violate the fundamental rights of some of the citizens of India.
    May be Art 35A escaped the attention of the ‘constitutional experts’ for six decades since it was kept ( intentionally) outside the main body of the Constitution of India..
    Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. The Preamble of COI recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to “all its citizens”, Justice Social, economic and political liberty and equality. Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the arch of the Constitution and without them a man’s reach will not exceed his possible grasp. ….
    It is worthwhile submitting here that Clause -4 [ “No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground”] ) and Clause -5 [“For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”] were inserted in article 368 of Constitution of India by s. 55 of the Constitution (Forty-second Amendment) Act, 1976 but Clause- 4 – has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980) 2 S.C.C. 591- Y Chandrachud Bench: Chandrachud, Y.V. (Cj), Bhagwati, P.N., Gupta, A.C., Untwalia, N.L., Kailasam, P.S. It was opined that the newly introduced Clause – 4 of Article 368 transgressed the limitations on the amending power of Parliament and is hence unconstitutional. It was considered demolishing the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any “limitation whatever”. No constituent power can conceivably go higher than the sky‐high power conferred by Clause ( 4), for it even empowered the Parliament to repeal the provisions of the Constitution. So similarly delegating any unlimited power to State Legislature / state, that too by amending the constitution by adding a new article 35A, that too not even by Parliament but only by a Presidential order, i.e THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 too is unconstitutional and is to be declared void.
    Hence there appears a need for minutely but critically examining the issue from the constitutional angles since the question raised here is of amending the constitution of India by a Presidential order by adding a new article like35A and not of ordering simple modifications and or exceptions of some provisions of constitution of India for the application in relation to Indian state of Jammu and Kashmir by President of India under the provisions of Art 370 (1-d)
    Primary question : is Art 35A’s addition in the COI by amending the Constitution of India under THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 of the President of India and not by Parliament under the constituent power contained in Art-368 , constitutionally valid?
    Though late, the question raised here is on amending the constitution of India by a Presidential order i.e THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 ( instead of amending the Constitution by the Parliament of India under its constituent powers contained in Art-368 of Constitution of India ) there by adding a new article like35A and not of ordering simple modifications and or exceptions of some provisions of constitution of India ( like that of Art15,16,19,35, etc ) for their application in relation to Indian state of Jammu and Kashmir by President of India merely under the provisions of Art 370 (1-d).
    And hence to be brief the question here is of Constitutional validity of THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48. Where as, so far, only the provisions that enjoy the cover of the contents of Art35A of constitution of India have been tested in courts for their constitutional validity and have been held constitutionally valid in view of Art35A being ‘there’ in Constitution of India. ‘Birth’ of Art 35A has not been so far subjected to judicial scrutiny and so it is a secondary question : whether the provisions incorporated in the text of Art 35A are good or bad or are against the basic spirit underlying Constitution of India. So question here is of Constitutional validity of THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48 as far as it amends Constitution of India by adding a new Article namely Art 35A in COI .
    It may not be legally possible to successfully raise questions on the birth of Article 370 but there is all scope for raising questions on the constitutionally valid existence of Art 35A and there is valid scope , rather need , for making a prayer before the highest constitutional bench of the Hon Supreme Court of India for a review of The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 of 15 May 1954 as far as adding a new article namely Art 35A in Constitution of India is concerned . Need is more to examine the constitutional validity of the method adopted for incorporation of Art 35A in the Constitution of India than it is for testing the contents of Art 35A
    ( * Daya Sagar is a Sr Journalist & a social activist [email protected] 9419796096)

Leave a Reply

Your email address will not be published. Required fields are marked *