Special Status of J & K - Questions and Answers

ANSWER: Instrument of Accession

Explanation:

• Under Article 1 of the Indian Constitution, the State of Jammu and Kashmir (J&K) is a constituent state of Indian Union and its Territory forms a part of the territory of India.


• On the other hand, Article 370 in Part XXI of the Constitution grants a special status to it.


• Accordingly, all the provisions of the Constitution of India do not apply to it.


• It is also the only state in the Indian Union which has its own separate state Constitution - the Constitution of Jammu and Kashmir.

Accession of J&K to India -


• With the end of the British paramountcy, the State of Jammu and Kashmir (J&K) became independenton 15 August 1947.


• On 20 October 1947, the Azad Kashmir Forces supported by the Pakistan army attacked the frontiers of the state.


• Due to this, the ruler of the state decided to accede the state to India.


• Accordingly, the ‘Instrument of Accession of Jammu and Kashmir to India’ was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 1947.


• Under this, the state surrendered only three subjects (defence, external affairs and communications) to the Dominion of India.


• At that time, the Government of India made a commitment that ‘the people of this state, would determine the internal Constitution of this state and the nature and extent of the jurisdiction of the Union of India over the state.’


• In pursuance of this commitment, Article 370 was incorporated in the Constitution of India.


• It clearly states that the provisions with respect to the State of J&K are only temporary and not permanent.

It became operative on 17 November 1952, and has the following provisions -

1. The provisions of Article 238 (dealing with the administration of Part B states) is not applicable to the state of J&K.

2. The state of J&K was specified in the category of Part B states in the original Constitution (1950).

3. This Article in Part VII was subsequently omitted from the Constitution by the 7^th Constitutional Amendment Act (1956) in the wake of the reorganization of states.

4. The power of Parliament to make laws for the state is limited to -

(a) Those matters in the Union List and the Concurrent List which correspond to matters specified in the state’s Instrument of Accession. These matters are to be declared by the president in consultation with the state government. The Instrument of Accession contained matters classified under four heads, namely, external affairs, defence, communications and ancilliary matters.

(b) Such other matters in the Union List and the Concurrent List which are specified by the President with the concurrence of the state government. This means that laws can be made on these matters only with the consent of the State of J&K.

5. The provisions of Article 1 (declaring India as a Union of states and its territory) and this Article (that is, Article 370) are applicable to the State of J&K.

6. Besides above, the other provisions of the Constitution can be applied to the state with such exceptions and modifications as specified by the President in consultation with the state government or with the concurrence of the state government.

7. The President can declare that Article 370 ceases to be operative or operates with exceptions and modifications. However, this can be done by the President only on the recommendation of Constituent Assembly of the state.


• Therefore, Article 370 makes Article 1 and Article 370 itself applicable to the State of J&K at once and authorizes the president to extend other Articles to the state.

ANSWER: All of the above

Explanation:

• In September-October 1951, the Constituent Assembly of J&K was elected by the people of the state on the basis of adult franchise to prepare the future Constitution of the state.


• It was also to determine its relationship with the Union of India.


• This sovereign body met for the first time on 31 October 1951, and took about five years to complete its task.


• The Constitution of J&K was adopted on 17 November 1957, and came into force on 26 January1957.

Its salient features (as amended from time to time) are -

a. It declares the State of J&K to be an integral part of India.

b. It secures justice, liberty, equality and fraternity to the people of the state.

c. It says that the State of J&K comprises all the territory that was under the ruler of the state on 15 August 1947.

d. This means that the territory of the state also includes the area which is under the occupation of Pakistan.

e. It lays down that a citizen of India is treated as a ‘permanent resident’ of the state if on 14 May 1954 -

1. he was a state subject of Class I or Class II; or

2. having lawfully acquired immovable property in the state, he has been ordinarily resident in the state for 10 years prior to that date; or

3. any person who before 14 May, 1954 was a state subject of Class I or Class II and who, having migrated to Pakistan after 1 March 1947, returns to the state for resettlement;

f. It clarifies that the permanent residents of the state are entitled to all rights guaranteed under the Constitution of India.

g. But, any change in the definition of ‘permanent’ can be made by the state legislature only.

h. It contains a list of directive principles that are to be treated as fundamental in the governance of the state. However, they are not judicially enforceable.

i. It provides for a bicameral legislature consisting of the legislative assembly and the Legislative Council.

j. The assembly consists of 111 members directly elected by the people. (Original strength was 100 which was increased to 111 in 1987).

k. Out of this, 24 seats are to remain vacant as they are allotted for the area that is under the occupation of Pakistan. Hence, as an interim measure, the total strength of the Assembly is to be taken as 87 for all practical purposes.

l. The council consists of 36 members, most of the mare elected in an indirect manner and some of them are nominated by the Governor, who is also an integral part of the state legislature.

ANSWER: 2, 3

Explanation:

Some features of Constitution of J&K are -


• It vests the executive powers of the state in the Governor appointed by the president for a term of five years.


• It provides for a council of ministers headed by the Chief Minister to aid and advise the governor in the exercise of his functions.


• The Council of Ministers is collectively responsible to the assembly.


• Under the original Constitution of J&K (1957), the head of the state and head of the government were designated as Sadar-i-Riyasat (President) and Waziri-Azam (Prime Minister) respectively.


• In 1965, they were re-designated as governor and Chief Minister, respectively.


• Also, the head of the state was to be elected by the state assembly.


• It establishes a High Court consisting of a Chief Justice and two or more other judges.


• They are appointed by the President in consultation with the Chief Justice of India and the Governor of the state.


• The High Court of J&K is a court of record and enjoys original, appelate and writ jurisdictions.


• However, it can issue writs only for the enforcement of fundamental rights and not for any other purpose.


• It provides for Governor’s Rule.


• Hence, the governor, with the concurrence of the President of India, can assume to himself all the powers of the state government, except those of the High Court.


• He can dissolve the assembly and dismiss the Council of Ministers.


• The Governor’s Rule can be imposed when the state administration cannot be carried on in accordance with the provisions of the J&K Constitution.


• It was imposed for the first time in 1977.


• Notably, in1964, Article 356 of the Indian Constitution (dealing with the imposition of President’s Rule in a state) was extended to the state of J&K.


• It declares Urdu as the official language of the state.


• It also permits the use of English for official purposes unless the state legislature provides otherwise.


• It lays down the procedure for its amendment.


• It can be amended by a bill passed in each house of the state legislature by a majority of two-thirds of the total membership of that house.


• Such a bill must be introduced in the assembly only.


• However, no bill of Constitutional Amendment can be moved in either House if it seeks to change the relationship of the state with the Union of India.

ANSWER: 1, 2 and 3

Explanation:

• In pursuance of the provisions of Article 370, the President issued an order called the Constitution (Application to Jammu and Kashmir) Order, 1950, to specify the Union’s jurisdiction over the state.


• In 1952, the Government of India and the State of J&K entered into an agreement at Delhi regarding their future relationship.


• In 1954, the Constituent Assembly of J&K approved the state’s accession to India as well as the Delhi Agreement.


• Then, the President issued another order with the same title,that is, the Constitution (Application to Jammu and Kashmir), Order, 1954.


• This order superseded the earlier order of 1950 and extended the Union’s jurisdiction over the state.


• This is the basic order that, as amended and modified from time to time, regulates the constitutional position of the state and its relationship with the Union.

At present, the relationship is as follows -


• Jammu and Kashmir is a constituent state of the Indian Union and has its place in Part I and Schedule I of the Constitution of India (dealing with the Union and its Territory).


• But its name,area or boundary cannot be changed by the Union without the consent of its legislature.


• The State of J & K has its own Constitution and is administered according to that Constitution.


• Hence, Part VI of the Constitution of India (dealing with state governments) is not applicable to this state.


• The very definition of ‘state’ under this part does not include the State of J&K.


• Parliament can make laws in relation to the state on most of the subjects enumerated in the Union List and on a good number of subjects enumerated in the Concurrent List.


• But, the residuary power belongs to the state legislature except in few matters like prevention of activities involving terrorist acts, questioning or disrupting the sovereignty and territorial integrity of India and causing insult to the National Flag, National Anthem and the Constitution of India.


• Further, the power to make laws of preventive detention in the state belongs to the state legislature.


• This means that the preventive detention laws made by the Parliament are not applicable to the state.


• Part III (dealing with Fundamental Rights) is applicable to the state with some exceptions and conditions.


• The Fundamental Right to Property is still guaranteed in the state.


• Also, certain special rights are granted to the permanent residents of the state with regard to public employment, acquisition of immovable property, settlement and government scholarships.


• Part IV (dealing with Directive Principles of State Policy) and Part IV A (dealing with Fundamental Duties) are not applicable to the state.

ANSWER: Only 2

Explanation:

• A National Emergency declared on the ground of internal disturbance will not have effect in the state except with the concurrence of the state government.


• The President has no power to declare a financial emergency in relation to the state.


• The President has no power to suspend the Constitution of the state on the ground of failure to comply with the directions given by him.


• The State Emergency (President’s Rule) is applicable to the state.


• However, this emergency can be imposed in the state on the ground of failure of the constitutional machinery under the provisions of state Constitution and not Indian Constitution.


• In fact, two types of Emergencies can be declared in the state, namely, President’s Rule under the Indian Constitution and Governor’s Rule under the state Constitution.


• In 1986, the President’s Rule was imposed in the state for the first time.


• International treaty or agreement affecting the disposition of any part of the territory of the state can be made by the Centre only with the consent of the state legislature.


• An amendment made to the Constitution of India does not apply to the state unless it is extended by a Presidential order.


• Official language provisions are applicable to the state only in so far as they relate to the official language of the Union, the official language of inter-state and Centre-State communications and the language of the Supreme Court proceedings.


• The Fifth Schedule (dealing with administration and control of schedule areas and scheduled tribes) and the Sixth Schedule (dealing with administration of tribal areas) do not apply to the state.


• The special leave jurisdiction of the Supreme Court and the jurisdictions of the Election Commission and the comptroller and auditor general are applicable to the state.


• The High Court of J&K can issue writs only for the enforcement of the fundamental rights and not for any other purpose.


• The provisions of Part II regarding the denial of citizenship rights of migrants to Pakistan are not applicable to the permanent residents of J&K, who after having so migrated to Pakistan return to the state for resettlement.


• Every such person is deemed to be a citizen of India.

Therefore, the two characteristic features of the special relationship between the State of J&K and the Union of India are -

1. The state has a much greater measure of autonomy and power than enjoyed by the other states.

2. Centre’s jurisdiction within the state is more limited than what it has with respect to other states.