The State of Jammu and Kashmir

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The State of J&K
  • Peculiar Position of the state.
  1. Part of the “Territory of India” act to Art 1.
  2. 15th State – Included in I Sec.
  3. SRC Act, 1956 abolished the “Part B” category. Original Caus. – ‘Part B’ State.
  4. 7th  Amendment Act, 1956 included in the list of the “States”.
  5. Special  position under Art 370. So that all the provision’s of  relating to states in I schedule not applicable to J & K.

Why special status?

  • History of the integration of J & K with India.
  1. Under British regime, J & K was an Indian state ruled by the hereditary Maharaja
  2. When J & K king Harishing did not opted to join either India or Pakistan after independence.
  3. 26th Oct, 1947 state was attacked by Azad Kashmir forces with the support of Pakistan.
  4. The King seeked the help of India, after executing an Instrument of Accession similar to that executed by the other Indian state rulers.
  5. India acqused jurisdiction over the J & K State w.r. to the subjects of
            Defence
            External Affairs &
            Communication.
6.       And J & K was included as a Part B State in the I Schedule of  promulgated in 1950.
  • Position of the State under the Original .
  1. Though includes as a part B state, not all the provisions of Part B states applicable to J & K.
  2. Because, GOI declared that, it was people of J&K, acting through their costitnent Assembly, who will determine the
    • constitution of the state &
    • Jurisdiction of the Union of India.
  1. Present applicable provisions are interim in nature.
  • Implications of the Accession.
  1. After Indian Independence, Ace to Indian Independence Act, 1947, [sec. 7(1) (b)] the Indian States regained the position of absolute sovereignty which they had prior to British rule. & they had given the power to decide to join either of dominion of India or Pakistan or to be independent.
    • But on 26th Oct, 1947, Maharaja Hari singh signed the instrument of accession with India an the same “form” which all other Indian states have signed.
    • This implies that all the provisions which applies to the other states in Part B are applied to J&K also in the same way & Jurisdiction is extended until the instrument of accession extends.
    • Though GOI gave assurance that constitutional relationship b/f India & the state would be subject to the confirmation by the people of the state,

Under no circumstances, can any “Third Party” take advantage of such extra-legal assurances & claim that the legal act had not been completed.

But there are still some interested quarters who misunderstand & misrepresent the liberty of the GOI, overlooking the above legal implications.

    • Articles of the  which apply of their own force to the state.

1. The only Art of  applied to J&K are

Art (1) & Art 270

2.       Other Art’s to be applied to the state would be determined by president in casultation with the state [Art 370]
3.       Art 1 J & K part of Indian territory.
4.       Legislative authority of Parl. Of India in the union list & cacurent list extends on those items only which are specified in instrument of Accession.
5.       This interim arrangement would continue until the constituent assembly of the J&K makes decision.
6.       President would either abrogate Art 370 or modifications as recommended by constitment Assembly of J&K.
    • The Constitution Order of 1950
      • President in consultation with the Government of state J & K. made the constitution order of 1950.
      • Which specifies the matters an which Indian Parl. Can make laws for J & K.
      • Relating to three subjects Defence, Foreign Affairs & Communications
    • Subsequent Orders.
      • In June, 1952, GOI & state of J&K made an agreement, at Delhi as to the subjects over which the union should have jurisdiction over the state.
      • Early, Feb. 1954, the constituent assembly of J&K has ratified the accession to India and also
      • Delhi agreement of Juen 1952.
      • President in consultation with the state government made the constitution (Applicable to J&K), order, 1954 which came into force on 14th, May, 1954.
      • Which implemented Delhi agreement & superseded order of 1950.
      • Ace to this orders of 1954, the jurisdiction of the union extended to all union subjects of  of India instead of only 3 subjects of defence, foreign affairs & communications.
      • Also does not include the internal constitution of the state government which was to be framed by the constituent Assembly of the state.
    • Making of the State Constitution:-
      • As according to the instrument of accession of state of J&K to India,
      • The future  of the state & its relationship with India
Were to be determined by consistment Assembly of the state.
      • Oct 31, 1951 soverign constitent assembly was elected.
      • The Correspending provisions governing the Exec., legislature & Judiciary of the state of J&K, not to be interfered by the provisions of  of India.
      • Fost official Act of Constitnent Assembly of the state was to put on end ot the heridhary princely rule of the maharaja.
      • Interim government first PM & J&K – Sheikh Abdullah.
      • November 17, 1957, adoption of  for the state &

(8) Jan 26, 1957, given effect to a “separate constitution for admin. Of the state” in place of the provisions of Part VI of the  which governer all the other state of the union.

    • Important provisions of the state constitution:-
        1.  of J&K declares that J&K to be on integral part of India.
        2. Territory of State includes all those which were under the sucrenity of the ruler of the state as Aug. 15, 1947 (inclu. Pak of J&K). This provision immune from amendment.
        3. J&K Will have “Governor”, who will act as the advice of COM (expect in the matter of appointment of C.M.).
        4. (2) houses – Legislative Assembly & Legislative Conect.
        5. 24 seats of L.A. will remain vacant to be followed by rep. Of people living in Pak.
        6. High Court
        7. PSC
        8. Member of the Civil Service – Pleasure of the governor
        9. Official language of the state – Urdu.
    • Indira-Abdullah agreement of 1975:-
      • “Plebiscite Front” – a Pro Pakistan front in which Sheikh Abdullah involved, had hot & cold with India.
      • On Feb 24, 1975, this agreement announced.
      • But cannot be implemented.
    • The Solient features of the  position of the state of J&K in relation to the Union.
a.       Jurisdiction of Parl.:-

In rel. to J&K shall be confined to the matters of Union list & Concurrent list. (not most of the matters).
And Residuary process to the legislature of that state except certain matters specified in 1969.

      • Constitution (Application to J&K) order, 1986 Art 249 extended to the state of J&K.

(b) Autonomy of the state in certain matters:-

In certain matters, Parl. Cannot make law without the consent of the state of J&K.

Similar autonomy in relation to the executive power of the union also. Thus,

        1. Emergency proclomation by the president under Art 352 on the ground of “Internal disturbance” in J&K cannot be made without the concurrence of the government of the state.
        2. Disposition of the state cannot be made by GOI, without the consent of J&K state.
        3. Union has no power to suspend the  of the state under Art 365 as the ground of failure to comply with the directions of the Union.
        4. Art 356-357 (rel. to suspension of  machinery) extended to J&K by Amendment order of 1964. But “Failure” mean constitutional machinery as set up by  of J&K & not Part VI of  of India.

In J&K Two types of proclamations are made:

 .         “Governor Rule” Under S. 92 of (c) of J&K.
a.       “President’s rule” Under Art 356 like other states.
5.       Centre no power to declare “Financial emergency” * Under Art 360 in J&K.
i.e. respects “State Rights”.
0.       FR’s & DPSP’s:-
      • DPSP’s not apply to the state of J&K.
      • Art 19 are subject to special restrictions for a period of 25 years.
      • Art 19 (1)(7) & 31 (2) not omitted, so that FR to property still guaranted in this state.
      • Special rights as regards employment, acquisition of property & settlement have been conferred an “permanent residents” of the state.
7.       Separate  for the state unlike all other slates.  is laid down in part VI of I.C.
8.       Art 368 not applicable to J&K State Procedure for Amendment of state .
9.       Other Jurisdictions:-
By amending Constitution Order, the juridiztions of C & AG of I
EC of (I) & Special Leave Jurisdiction of SC of (I) have been extended to the state of J&K.
BJP’s demand to abolish Art 370 i.e. special status to J&K because,
      1. Art 370 included in Part XXI under the label – “Temporary Transitional and special Provisions”. I.e. it is granted this status temporarily.
      2. (some) People of J&K abused the special status & conspired.
Art 1: Art 370: Read from ..
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