- Peculiar Position of the state.
- Part of the “Territory of India” act to Art 1.
- 15th State – Included in I Sec.
- SRC Act, 1956 abolished the “Part B” category. Original Caus. – ‘Part B’ State.
- 7th Amendment Act, 1956 included in the list of the “States”.
- 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.
- Under British regime, J & K was an Indian state ruled by the hereditary Maharaja
- When J & K king Harishing did not opted to join either India or Pakistan after independence.
- 26th Oct, 1947 state was attacked by Azad Kashmir forces with the support of Pakistan.
- The King seeked the help of India, after executing an Instrument of Accession similar to that executed by the other Indian state rulers.
- India acqused jurisdiction over the J & K State w.r. to the subjects of
- Position of the State under the Original .
- Though includes as a part B state, not all the provisions of Part B states applicable to J & K.
- 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.
- Implications of the Accession.
- 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
- 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
- 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:-
- of J&K declares that J&K to be on integral part of India.
- 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.
- J&K Will have “Governor”, who will act as the advice of COM (expect in the matter of appointment of C.M.).
- (2) houses – Legislative Assembly & Legislative Conect.
- 24 seats of L.A. will remain vacant to be followed by rep. Of people living in Pak.
- High Court
- Member of the Civil Service – Pleasure of the governor
- 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.
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,
- 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.
- Disposition of the state cannot be made by GOI, without the consent of J&K state.
- 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.
- 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:
- 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.
- Art 370 included in Part XXI under the label – “Temporary Transitional and special Provisions”. I.e. it is granted this status temporarily.
- (some) People of J&K abused the special status & conspired.