Saturday, 14 May 2016

14 MAY 1954 PRESIDENT APPLIES INDIAN CONTITUTION IN KASHMIR STATE

Constitution of Jammu and Kashmir

From Wikipedia, the free encyclopedia
Constitution of Jammu & Kashmir is the legal document which establishes the framework of government at state level in Indian state of Jammu & Kashmir. The present constitution was adopted on 17 November 1956, and came into effect on January 26, 1957. As of 2002, 29 amendments have been affected to the Constitution.[1]
Constitution of India grants special status to Jammu and Kashmir among Indian states, and it is the only state in India to have a separate constitution. Article 370 of the Constitution of India states that Parliament of India and the Union Government jurisdiction extends over limited matters with respect to State of Jammu & Kashmir, and in all other matters not specifically vested in Federal governments, actions have to be supported by state legislature.[2][3] Also, unlike other states, residual powers are vested in state government. Because of these constitutional provisions, the State of Jammu & Kashmir enjoys autonomy not enjoyed by other states. Among notable and visible differences with other states, till 1965, the head of state in Jammu & Kashmir was styled Sadr-e-Riyasat, whereas in other state, the title was Governor, and head of government was styled Prime Minister in place of Chief Minister in other states.

Historical aspect[edit]

India and Pakistan gained their independence from the United Kingdom on midnight of 15 August 1947 IST. Jammu & Kashmir, then a princely state under suzerainty of British Monarch, chose to remain neutral not joining any dominion at the time of independence. A Muslim majority state ruled by Hindu Maharaja Hari Singh (then the ruler of the state), government of the state signed a standstill agreement with Pakistan. However, on 6 October 1947, Pakistani Muslim tribes, supported by the government of Pakistan, attacked Jammu & Kashmir on the behest of Pakistan to achieve forcible accession to Pakistan. Maharaja Hari Singh requested assistance from India, and when India requested an Instrument of Accession to India, Maharaja signed it so that India could help in defense.
The Instrument of Accession (IoA) gave only limited powers to the Government of India, only about the three subject matters of Foreign affairs, Defence and Communications. It was similar to several hundred others IoA signed between the Government of India and other princely states. Whereas the other states later signed merger agreements, therefore dissolving their states to merge into the Dominion of India, granting sovereignty over them to the Dominion Government, the matter of Jammu & Kashmir was complicated by the ongoing war with Pakistan, and a binding United Nations Security Council resolution. It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution. The Constitution of Jammu & Kashmir, which Maharaja (later Sadr-e-Riyasat) Dr. Karan Singhsigned into law in 1957, is still in force.[4] [5]

Salient Features[edit]

The Constitution, as of 2002, is has 158 numbered articles and 7 schedules, divided into 13 parts (I to XIII). The divisions of articles is as follows. The numbers in braces after show the articles included in a particular part.
  • Part I: Preliminary (1-2)
  • Part II: The State (3-5)
  • Part III: Permanent Residents (6-10)
  • Part IV: Directive Principles of State Policy (11-25)
  • Part V: The Executive (26-45)
    • The Governor (26-34)
    • The Council of Ministers (35-41)
    • The Advocate General (42)
    • Conduct of Government Business (43-45)
  • Part VI: The State Legislature (46-92)
    • Composition of the State Legislature (46-50)
    • General Provisions (51-56)
    • Officers of the State Legislature (57-63)
    • Conduct of Business (64-67)
    • Disqualification of Members (68-71)
    • Powers, Privileges and Immunities of the State Legislature and Its members (72-73)
    • Legislative Procedure (74-78)
    • Procedure In Financial Matters (79-84)
    • Procedure Generally (85-90)
    • Legislative power of the Governor (91)
    • Breakdown of Constitutional Machinery (92)
  • Part VII The High Court (93-113)
    • Subordinate Courts (109-113)
  • Part VIII: Finance, Property and Contracts (114-123)
  • Part IX: The Public Services (124-137)
    • The Public Service Commission (128-137)
  • Part X: Elections (138-142)
  • Part XI: Miscellaneous Provisions (143-146)
  • Part XII: Amendment of the Constitution (147)
  • Part XIII: Transmonal Issues (153-158)
Articles 148 to 152 have been omitted in Part XIII.
Schedules:
  • Schedule I: Omitted (Repealed)
  • Schedule II: Emoluments, Allowances and Privileges of the Governor
  • Schedule III: Salaries and allowances of the Speaker and Deputy Speaker of the Legislative Assembly and the Chairman and the Deputy Chairman of the Legislative Council
  • Schedule IV: Salaries, allowances and other conditions of service of the Judges of the High Court.
  • Schedule V: Forms of Oaths or affirmations
  • Schedule VI: Regional Languages
  • Schedule VII: Provision as to disqualification on ground of defections
Although India has a unitary citizenship, Constitution of Jammu & Kashmir defines a concept of Permanent Residency, in Part III. This concept is functionally similar to citizenship, and permanent residents of the State enjoy rights not enjoyed by non-residents. Citizens of India who do not have permanent residency in the State have limited property ownership rights.

Preamble[edit]

Preamble to the Constitution of Jammu and Kashmir is as quoted below.
"WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,
having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves-
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among us all;
FRATERNITY assuring the dignity of the individual and the unity of the nation;
IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE
TO OURSELVES THIS CONSTITUTION."
— -Preamble of Constitution of Jammu & Kashmir.[1]
The preamble resembles almost verbatim to the Preamble to the Constitution of India.

Jurisdiction of Parliament[edit]

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. Government of India can declare emergency in Jammu and Kashmir and impose Governor's rule in certain conditions. Matters related to Defense, Foreign relations, Communication and Finance of Jammu and Kashmir is under jurisdiction of Constitution of India.
Union Legislature has very limited jurisdiction in case of J&K in coparison with 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 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.

Emergency Provisions[edit]

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 & Fundamental Rights[edit]

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.It is the only state which does not have to give a detailed record on the money flowing in the state and where it is used and how. In the Indian Constitutional history only one Fundamental Right has been added so far and that is Right to Education. This right too has not been extended to J&K.

Official Languages[edit]

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.

Relations with Government of India[edit]

  • Article 3 in part 2 of the J & K constitution reads as, "Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India."[6]
  • Article 5 of the part 2 is about extent of "Executive" and "Legislative" powers of the state which tells that Jammu and Kashmir Legislative Assembly has executive and legislative power of all matters except those with respect to which Parliament of India has power to make laws for the State under the provisions of the Constitution of India.[6] Sectors in which Government of India can make laws for Jammu and Kashmir includes Defense sector, Foreign affairs, Finance and Communication.[2][3]
  • Article 147 of Part 12 is about amendment of the J & K Constitution which states that, "No Bill shall be introduced or moved in State Legislative Assembly to amend or change above mentioned articles 3 and 5."[7]

Relations with Pakistan administered Kashmir[edit]

  • Article 48 of Part VI of J and K constitution defines Pakistan Administered Kashmir as "Pakistan Occupied Territory".[8]
  • There are currently 87 seats in J & K State assembly, but article 48 of J & K constitution also recognizes 24 seats from Pakistan administered Kashmir and mentions that these 24 seats will remain vacant till Pakistan ceases the "occupation" of Kashmir and the said area shall be excluded in delimiting the territorial constituencies till that time.[9]

Miscellaneous[edit]

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. 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).
No Bill or amendment can be introduced or moved in either House of the Legislature which seeks to make any change in the provisions that (a) the State of Jammu and Kashmir is and shall be an integral part of the Union of India (Art. 3) (b) the executive and legislative power of the State does not extend to matters those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India (Art. 5), (c) of the Constitution of India as applicable in relation to the State (Art.147 (c) and Art. 147. (Art. 147(a)).

See also[edit]

Constitutional Integration of Jammu & Kashmir

 by  Leave a Comment
- Shatakshi Sharma, CNLU, Patna
Editor’s Note: The state of Jammu and Kashmir possesses a distinct position in the Indian Union. Unlike other states, 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 favour 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.  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 confer 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, Mehalaya, 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

Process of Constitutional integration of J&K state is a gradual and a 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 but 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 adoption of Article 370 in the Indian Constitution. It defines the mechanism for managing centre-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 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 labelled 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 reorganisation 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 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 favour 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 f 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. 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 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 centre-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 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 be 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 on 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 ethno- cultural 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 till 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 regional council on geographical basis, an elected zila shoora (district council), and halqa majlis and halqa pachayats 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 favour 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 likelihood of repeal of all the Presidential Orders issued since 1953 that had curtailed autonomy for the state government[xxv].

A.                  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 adoption of Article 370 in the Indian Constitution. It defines the mechanism for managing centre-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 April1959. 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-eAzam 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-third 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 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 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 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 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]

B.           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]

C.                 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 a psychology of separatism. Many renounced political leader are 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 Indian Union has to find 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 state, 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 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.
Edited by Saksham Dwivedi

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