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Constitution of Jammu and Kashmir

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Constitution of Jammu and Kashmir

Article 370 of the Indian constitution, which is of a temporary nature, grants special status to Jammu and Kashmir. 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. For example, till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of Chief Minister.

Historical aspect

India and Pakistan gained their independence on 15 and 14 August 1947 respectively; J&K chose to remain neutral not joining any dominion. Maharaja Hari Singh (that time the ruler of J&K) signed a standstill agreement with Pakistan. But India refused to sign any such agreement. However, on 6 October 1947, Pakistani Muslim tribes, supported by the government of Pakistan, hearing of Hindu atrocities in Muslim dominated Poonch region, attacked Jammu and Kashmir. To save his state Maharaja Hari Singh signed Instrument of Accession to India in mysterious circumstances, so that India could help in defending her.

Whereas the other states later signed merger agreements, the relationship of Jammu & Kashmir with the rest of the country was governed by a special set of circumstances, and hence given a special position. It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution. The Constitution of Jammu & Kashmir, which Dr. Karan Singh signed into law in 1957, is still in force.[1] [2] India and Pakistan were partitioned in 1947. Kashmir was split as well, with two-thirds going to India and a third going to Pakistan, even though India's share was predominantly Muslim, like Pakistan. A rebellion of Tribal Muslims from the Pakistan side led was suppressed by Indian forces.[3] War broke out. It wasn't settled until a 1949 controversial cease-fire brokered by the United Nations and a resolution calling for a referendum, or plebiscite. India never took the matter to the United Nations for a decision on the accession of Kashmir, but to broker a ceasefire and decide a timeline for removal of the infiltrators. So India never conducted one, while there has been a cry from many corners that a plebiscite was necessary.

Special features

J&K has a separate Constitution of its own. The Constitution of J&K was enacted by a separate Constituent Assembly set up by the State and it came into force on 17 November 1956.

Jurisdiction of Parliament

Union Legislature has very limited jurisdiction in case of J&K as compared to 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

The Union of India has no power to declare Financial Emergency under Article 370 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

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 is not extending to J&K.

Official Languages

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.

Miscellaneous

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)).

Amendment of Article 370

Under Article 370(3), consent of state legislature and the constituent assembly of the state are also required to amend Article 370. Now the question arises, how can we amend Article 370 when the Constituent Assembly of the state no longer exists? Or whether it can be amended at all? Some jurists say it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370(1). But it is still a mooted question.

Demand for Abrogation of Article 370

Equally valid arguments are forwarded by those in favour of and those against its abrogation. Those in favour argue that it has created certain psychological barriers. They say that it is the root cause of all the problems in J&K. They further believe that it is this Article 370 which encourages secessionist activities within J&K and other parts of the country. They say, at the time of enactment, it was a temporary arrangement which was supposed to erode gradually. They also argue that it acts as a constant reminder to the Muslims of J&K that they have still to merge with the country. Those against its abrogation forward the following arguments. They contend that that Abrogation will have serious consequences. It will encourage secessionists to demand plebiscite which will lead to internationalisation of the issue of J&K. They further argue that the contention of Article giving rise to secessionist activities is baseless as states like Assam and Punjab, which don’t have any special status have experienced such problems. It would not only constitute a violation of the solemn undertaking given by India through the instrument of accession, but would also give unnecessary misgivings in the minds of the people of J&K, making the issue more sensitive.

Implications of Article 370

This article specifies that except for Defence, Foreign Affairs, Finance and Communications,(matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus 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.

Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, and Nagaland. The Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .

The 1974 Indira-Sheikh accord mentions that " The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India " . At the end.

Indian citizens from other states can not purchase land or property in Jammu & Kashmir[4]

See also

References

  1. ^ http://timesofindia.indiatimes.com/india/Integral-review-of-Article-370-overdue-but-needs-cooperation-not-confrontation-Congress-leader-Karan-Singh/articleshow/35733023.cms
  2. ^ http://middleeast.about.com/od/pakistan/a/kashmir-history-backgrounder.htm
  3. ^ http://middleeast.about.com/od/pakistan/a/kashmir-history-backgrounder.htm
  4. ^ http://www.indianexpress.com/oldStory/46240/

External links

  • Constitution of jammu and Kashmir
  • Get your Copy of Constitution of Jammu and Kashmir at JK Law Reporters
  • http://www.legalserviceindia.com/article/l281-Constitutional-Position-of-Jammu-and-Kashmir.html
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