State of J&K - Polity and Constitution, UPSC, IAS | Polity and Constitution (Prelims) by IAS Masters PDF Download

State of J&K

Chapter -12

Being the 15^th state included in the first Scheduled of the Indian Constitution, all provisions of the Constitution of India relating to the states in the first scheduled are not applicable to J & K even though it is one of the state specified in that Schedule.
This peculiar position was due to the fact that having regard to circumstances in which the state acceded to India [on 26^th October 1947, when J&K was attacked by POK forces with the support of Pakistan and Maharaja Hari Singh was forced to sign an instrument of accession for helping him].The government of India had declared that it was the people of the state of J & K who were to finally determine the constitution of the state and jurisdiction of the Union of India.

Article 1 and 370 of constitution apply for their own force to J & K. The application of the other Act was to be determined by the President in consultation with the government of state. The legislature authority of parliament over the state confined to the matters specified in the instrument of accession.
The above interim arrangement would continue until the Constituent Assembly for J&K made its decision. It would then be communicated to President who would either abrogate Article 370 or make such modification as might be recommended by the Constituent Assembly.

The President made the Constitution (Applicable to J&K) order, 1954, in consultation with the government of J & K, according to which the Union Parliament would be competent to make laws for J & K relating to the three subjects of Defence, Foreign Affairs and Communication.

PROVISIONS OF THE STATE CONSTITUTION:

The constitution of J &K was adopted on 17^th November 1957 and given effect from 26^th January 1957. It has following provisions:-

1. The Constitution declares the state of J&K to be an integral part of Union of India.
2. The territory of the state will comprise all territories which on August 15, 1947 were under the sovereignty or suzerainty of the Ruler of state (i.e including PoK).
3. Every person who is a citizen of India shall be permanent resident of the state , if on 14^th May 1954, he was a state subject of Class I or II, or he has been ordinarily a resident in the state for not less than 10 years prior to that date and have lawfully acquired immovable property in the state. Those who migrated to Pakistan after 1st march 1947 and returned under permit for resettlement in the state are permanent residents of the state.
4. Governor is to be appointed by President under his hand and seal. Executive powers will be vested with him and shall be exercised by him with the advice of the council of Ministers (except in the matter of appointment of C.M and proclamation of Governor’s rule in case of breakdown of constitutional machinery. The Governor will hold office for 5 years term.
5. The council of Ministers headed by C.M. will be collectively responsible to the Legislative Assembly.
6. The Legislature of the state shall consist of a Governor and two Houses i.e. legislative assembly and legislative council.
   • The legislative assembly will consist of 100 members chosen by the direct election and 2 women to be nominated by the Governor. 24 seats in the legislative assembly will remain vacant to be filled by representatives of people living in POK.
   • Legislative council shall consist of 36 members, 11 were be elected by the members of legislative assembly from among the person who are residents of the province of Kashmir provided that members so elected that at least 1 shall be a resident of Tehsil Ladakh and 1 of Kargil, the two outlying areas of the state. 11 were to be elected by legislative assembly from among the resident of Jammu province. The remaining 14 members will be elected by various electorates such as municipal councils and such other local bodies.
7. The High Court of J &K will consist of a Chief Justice and two or more judges, appointed by the President in consultation with chief justice of  J & K and chief justice will be appointed by President after consultation with Chief Justice of India and Governor of J& K .
8. There will be a Public Service Commission along with its Chairman appointed by the Governor. Every member of civil service will hold the office under the pleasure of the Governor.
9. The Official language will be Urdu but English will continue to be used for all official purpose of state.
10. The state constitution may be amended by introducing a Bill in Legislative Assembly and getting it passed in each House by a majority not less than 2/3^rd of the total membership of that house.

      But no Bill or amendment seeking to make any change in provisions relating to relationship of the state with the Union of India shall be introduced in either House of the Legislature.

THE CONSTITUTIONAL POSITION OF J & K IN RELATION TO UNION 

a) JURISDICTION OF PARLIAMENT:- Confined to matters enumerated in Union and Concurrent list and the Residuary power shall belong to the Legislature of the state except certain provisions such as prevention of activities relating to cession or secession or disrupting the sovereignty or integrity of India, Legislature or preventive detention in J & K.

b) AUTONOMY OF STATE IN CERTAIN MATTERS :- In certain matters, the Parliament cannot make law without the consent of the legislature of J & K where the state is to be affected e.g. alteration of name or territories of state, international treaty or agreement  affecting the disposition of any part of the territory of the state.

Similar features have been imposed upon the executive power of the Union to safeguard autonomy:-

• No proclamation of emergency without the concurrence of state government.
• No power to suspend the constitution:
• There are two types of proclamation – President’s Rule under Article 365 and Governor’s     rule under which he assume all or any function of state except of High Court.

c) FUNDAMENTAL RIGHTS and DIRECTIVE PRINCIPLES:- They do not apply to the state of J & K . The provisions of Article 19 are subject to special restrictions for a period of 25 years. Special Rights as regards to employment, acquisition of property and settlement have been conferred on the permanent residents of the state. Article 35-A was inserted in the constitution for this effect by a Presidential order as the Constitution (Application to Jammu and Kashmir) Order, 1954. In this article, the state legislature of Jammu and Kashmir is empowered to define the persons who are permanent residents of the state and confer any special rights and privileges in matters of employment under the state government, acquisition of immovable property in the state, settlement in the state and scholarships and such other forms of aid provided by the state government. Article 19(1) (f) & 31(2) have been omitted so that the FR to property is still guaranteed in J & K. But there is a controversy over Article 35-A being unconstitutional on the basis that it was added by a Presidential Order without the approval of the Parliament. Although 35-A has been inserted under the provisions of Article 370.

d) SEPARATE CONSTITUTION OF THE STATE made by separate Constituent Assembly.

e) PROCEDURE FOR AMENDMENT IN STATE CONSTITUTION:- Article  368 is not applicable to amendment of constitution of J & K. For its amendment an Act of the legislative Assembly of state [passed by a majority of not less than 2/3^rd of its members is required. But if such amendment seats to affects the Governor or the Election Commission, it shall have no effect unless the law is reserved for the consideration of the President and receive his assent.

No amendment of the Indian Constitution shall extend to J & K unless it is extended by   an order of the President under Article 370(1).

f) No alteration of areas or boundaries of this state can be made by parliament without the consent of the legislature of J & K.

g) OTHER JURISDICTION:- By Amendments of Constitution of order, the jurisdiction of  CAG, EC  and special leave jurisdiction of the SC have been extended to the state of J & K.

Article  370 (3) provides to put an end to the power of Article  370 that the President may by public notification declare that this Article shall cease to be operate but recommendation of Constituent Assembly of state be necessary. Few years back BJP raised a plea that President should declare that Article 370 shall cease to operate, so that special status of J & K would be abolished. Since the Constituent Assembly referred in Article 370 (3) no longer exist, the President is not empowered to do so.