Chapter 5: Federal JurisdictionThe
constitutional provisions envisaged by Article 370 of
the Constitution of India and the subsequent
Constitution (application to Jammu and Kashmir)
Orders, promulgated by the President of India, provide
for a partial application of the Constitution of India
to the Jammu and Kashmir State. In their application
to Jammu and Kashmir, the provisions of the
Constitution of India, fall into three categories:
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Provisions, which are not applicable to the Jammu and
Kashmir State;
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Provisions, which are applicable to the Jammu and Kashmir
State; and
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Provisions, which are applicable to the State with
exceptions and reservations.
The provisions of the Constitution of India which are
saved application in regard to the Jammu and Kashmir State, pertain to the
Government of States, the Directive Principles of State Policy, public services,
amendment of the Constitution of India and the powers of the President of India
to impose a state of constitutional breakdown in any State which fails to comply
with or give effect to any directions given by the Unions. The Government of the
Jammu and Kashmir State is constituted in accordance with the provisions of the
Constitution of Jammu and Kashmir, which has framed by the Constitution Assembly
of the State in January 1957. The Constitution of Jammu and Kashmir incorporates
provisions with regard to the Directive Principles of the State Policy and the
organization of the Public Services in the Stated Provisions are incorporated in
the Constitution (Application to Jammu and Kashmir) Order, 1954, by virtue of
which the amendments to the Constitution of India are made applicable to the
State by and order of the President of India by virtue of powers vested in him
by Article 370 of the Constitution of India.
The provisions of the Constitution of India, which are
applicable to the Jammu and Kashmir State and the provisions, which are made
applicable to the State with exceptions and reservations, are interwoven into a
complex pattern of intricate alternatives and specifications. Placed within the
broad context of the constitutional processes, the Constitution of India
underlines, these alternatives and reservations represent severe deviations from
the functional norms, the Constitution of India envisages. Over the years most
of these deviations have assumed dimensions, which have ultimately supervened
the basic structure of the Constitution of India in relation to Jammu and
Kashmir. The provisions of the Constitution of India, which apply to the State,
with exceptions and reservations, pertain to territories of the Union,
Citizenship, Fundamental Rights, Jurisdiction of the High Courts in the State,
the elections, Emergency powers of the President and the official language of
the Union.
Provisions of the Constitution of India
which apply to the Jammu and Kashmir State without any exceptions or
reservations pertain to the election, powers and the functions of the President
of India, the Union Council of Ministers, election and powers and privileges of
the Parliament and the parliamentary procedure, the organization and powers of
the Supreme Court of India, the appointment and functions of the Comptroller and
Auditor-General of India and the Union Public Service Commission.
Union Territories
Article I of the Constitution of India defines the
territories of the Constitution of India The First schedule of the Constitution
of India defines the territories of the States, which comprise the Indian Union.
The Jammu and Kashmir State is listed in the First Schedule and the territories
of the State are defined to include the territory, which immediately before the
commencement of the Constitution of India "was comprised in the Indian
State of Jammu and Kashmir". The territories of the Jammu and Kashmir
State, at the time the Constitution of India was framed, included the
territories of the State of Jammu and Kashmir, with regard to which the Ruler of
the State, Maharaja Hari Singh, had executed the Instrument of Accession. The
territories of the State defined by the First Schedule, therefore, include areas
of the State, which were occupied by Pakistan in 1947.
Article I of the Constitution of India is made applicable
to the State independent of Article 370 and the State is included in the First
Schedule of the Constitution, which describes the territories of India and lists
the States of the Indian Union. Article I of the Constitution of India is
Pivotal to the entire constitutional organization envisaged by the Constitution
of India, as it defines the territories of the Union and describes the basis of
its jurisdiction. The Jammu and Kashmir State is, therefore, brought within the
territories of the Union and its jurisdiction.
There is an overlapping in Article I and Article 370 of
the Constitution of India, in so far as Article 370 also envisages provisions,
which provide for the application of Article I to the Jammu and Kashmir State.
Clause1 (c) of Article 370 stipulates:
"The provisions of Article (1) and of this Article
shall apply in relation to that State (Jammu and Kashmir)." The overlapping
in the provisions of Article I and Article 370 Clause 1 (c) has led to
considerable confusion about the main import of the special provisions envisaged
by the Constitution of India. It is generally contended that the inclusion of
the Jammu and Kashmir State, in the territories of the Indian Union, is
accomplished by Article 370 of the Constitution of India and if the provisions
of Article 370 are abrogated the application of Article I to the State will
immediately cease to be operative and the State will fall out of the territorial
jurisdiction of the Indian Union. Many of the Conference leaders including
Sheikh Mohammad Abdullah and Mirza Afzal Beg, interpreted the provisions of
Article 370, almost in the same manner and Mirza Afzal Beg repeatedly claimed
that Article 370 was the only link between the State and India. The leaders of
the successive governments as well, claimed that Article 370 was a bridge
between the State and India and if Article 370 was abrogated the State would
stand apart from the Union of India.
The Plebiscite Front and the leaders of the cessionist
movements in the State added a fresh dimension to the provisions of Article 370.
They interpreted Article 370 as a commitment to the conditional accession by the
State to India. They claimed that Article 370 was included in the Constitution
of India, in pursuance of the commitments made by the Government of India,
inside and outside the Security Council, and that the accession of the State
would be determined by a reference to the people of the State. In fact, the
cessionist contentions received wide approbation and in due course of time
hardened into political precepts that the special constitutional provisions
envisaged by Article 370 formed a temporary relationship between the State and
India and if the provisions of Article 370 were abrogated the accession of the
State to India would be nullified. The constitutional relation between the State
and the Union of India has two aspects: One which pertains to the application of
Article I of the Constitution of India to the State and the other which relates
to the provisions of Article 370. Article I of the Constitution of India
describes the territorial jurisdiction of the Union of India and forms the bases
for all other instrumentalities created by the Constitution of India. In one
respect, therefore, Article I is more sacrosanct than any other provisions of
the Constitution of India.
The position, that the Jammu and Kashmir State is ensured
in the Constitution of India, by virtue of Article 370, emanates from the basis
underlined by Article I. It applies to the State by itself and independently and
brings the State within the limits of the territories of the Union and the ambit
of its jurisdiction. Article I is an independent constitutional instrument,
which does not depend upon Article 370; in fact, instruments created by Article
370 depend upon the provisions of Article I. Evidently Clause 1 (c) of Article
370 is redundant and reiterates the fact which is already accomplished by
Article I of the Constitution of India Article 370 describes a jurisdiction
which is temporary and transitional. The provisions of Clause 1 (c) of Article
370 do not prejudice the nature of Article I in its application to the State and
in case Article 370 is abrogated, the applicability of Article I will not be
affected. In such an eventuality the Jammu and Kashmir State will be immediately
placed, at par with the other States comprising the Indian Union and brought
within the purview of the provisions of the Constitution of India, including
those pertaining to the Constitution of the States. The Constitution of the
State will simultaneously be set aside and its instruments will cease to be
operative in the State.
The provisions of Article 370 are not relevant to the
accession of the State and do not form any constitutional commitments in regard
to accession. If Article 370 is abrogated, it will not effect the accession of
the State, because Article 370 does not accomplish the accession of the State to
the Indian Union. Nor does, for that matter of fact, Article I of the
Constitution of India accomplish the accession of the erstwhile Indian States to
the Indian Union. Even if Article I ceases to be operative the accession of the
State will remain unaffected.
Article I confirms what the sovereignty of the state of
India actually performs. In fact, no Indian State became a part of the State of
India, when it acceded to the Dominion of India by virtue of the Constitution of
India. The State of India was prior to the Constitution of India. The State of
Jammu and Kashmir became an integral part of the State of India, when it acceded
to the Dominion of India by virtue of the Instrument of Accession.
The Constitution of India lays down the organization of
the Indian Union, the constitution of its government, and the orbit of its
authority and the objectives of its action. It does not create the State of
India. The State of India came into existence before the Constitution of India
was made. The Constitution of India is not constitutive of the State of India,
or the sovereignty of India. It does not create the territories of India, it
describe, the territories of India and defines the jurisdiction of the Indian
Union. The territories of India, not defined by Article I also form a part of
India. The Constitution of India is therefore only declaratory of the State of
India. Obviously, the Jammu and Kashmir State which is a part of the State of
India is also a continent part of the political structure, the Constitution of
India envisages.
The Parliament of India is vested with the power to (i)
"form new States, or by separating territories from any States of parts of
States, or by merging two or more States or parts of States, or by uniting any
territory to a part of any State", (ii) increases the area of any State,
(iii) alter the boundaries of any State, or (iv) change the name of any State.
In their application to the Jammu and Kashmir State, the provisions of the
Constitution of India with regard to the powers of the Parliament are subject to
the conditions that no Bill, seeking to change the area, boundaries and the name
of the State can be introduced in either House of the Parliament without the
consent of the legislature of the Jammu and Kashmir State.
Citizenship
The provisions of the Constitution of India with regard to
citizenship are applicable to Jammu and Kashmir with a number of exceptions.
Article 5 of the Constitution of India defines the citizens of India as the
persons, who at the time of the commencement of the Constitution, had their
domicile in India, provided they were either born in India, or either of their
parents were born in India or were residents of India for not less than five
years immediately before the commencement of the Indian Constitution. The
provisions of Article 5 are applicable to the Jammu and Kashmir State without
any exception. The provisions of the Constitution of India with regard to the
people who migrated from Pakistan to India are applicable to Jammu and Kashmir
with certain reservations. Indian citizenship is granted to people who migrated
to India from Pakistan before 19 July 1948, provided they or their parents or
any of their grand parents were born in India as defined by the Constitution Act
of 1935, and they reside in India since the date of their migration. Citizenship
is also granted to migrants from Pakistan who migrated to India after 19th July
1948, provided they or any of their parents or of their grand parents were born
in India as defined by the Constitution Act of 1935, and they were registered as
citizens of India by an officer appointed by the Government of India in the form
and manner prescribed by it. Provisions are also made by the Constitution of
India for the grant of citizenship to the people of India, who migrated to
Pakistan after 1 March 1947, but returned to India before 19 July 1948, on a
permit for resettlement issued by the Government of India. These provisions,
embodied in Article 6 and 7 of the Constitution are applicable to Jammu and
Kashmir with the exception that the Permanent Residents of the State, who after
having migrated to "Pakistan return to the State, are entitled to assume
citizenship on a Permit for Resettlement or Permit for Permanent Return, issued
by or under the authority of any law made by the legislature of the State."
The permanent residents of the State are defined as the persons:
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Who were born or whose parents were born in the State and
who resided in the territories, which were constituted into the Jammu and
Kashmir State in 1846;
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Who or whose parents settled in the State before 1885;
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Who or whose parents settled in the State before the year
1911, and acquired immovable property in the State;
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Who or whose parents settled in the State before 14 May
1945, and acquired immovable property in the State;
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State-Subjects, who having migrated to Pakistan returned
to the State under a Permit for resettlement in the State, issued by or under a
law made by the State Legislature;
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State-Subjects residing in territories occupied by
Pakistan, who were able to prove that they had migrated to Pakistan after 1st
March 1947, and who were issued Permit of Resettlement by or under law made by
the State Legislature.
Fundamental Rights
The provisions of the Constitution of India with regard to
the fundamental rights apply to the Jammu and Kashmir State with exceptions and
reservations envisaged by the Constitution (Application to Jammu and Kashmir)
Order, 1954. Before the promulgation of the Constitution Application Order, none
of the fundamental rights envisaged by the Constitution of India were available
to the people of the State. The Constitution Act of 1939, promulgated by
Maharaja Hari Singh, in accordance with which the Interim Government of the
State was organized did not provide for any fundamental or basic rights. Many of
the limitations, which were imposed by the Constitution (Application to Jammu
and Kashmir) Order, 1954, on the applicability of the fundamental rights to the
State, were in due course of time, done away with. Many of the restrictions
still survive.
The Constitution of Jammu and Kashmir provides that
"the permanent residents of the State shall have all the rights guaranteed
to them under the Constitution of India". Obviously, the Constitution of
Jammu and Kashmir is restrictive to the extent that it stipulates the
availability of the fundamental rights to the permanent residents of the State
only, leaving out the people of the State who are the citizens of India, but are
not the permanent residents of the State. The restrictive content of Section 10
of the Constitution of Jammu and Kashmir, assumes a different complexion in view
of the fact that the State Legislature is reserved, by the Constitution of the
State, the power to make law "defining or altering the definition of the
classes of persons, who are or shall be permanent residents of the State,
conferring upon them special rights and privileges and regulating or modifying
any special rights and privileges enjoyed by them."
The provisions of Section 10 of the Constitution of
Jammu and Kashmir have two principal aspects. First, that the fundamental rights
embodied by the Constitution of India are available only to the Permanent
Residents of the State and not to the other residents of the State including the
citizens of India who are not the Permanent Residents of the State. Secondly,
only such of the fundamental rights embodied by the Constitution of India, as
are applicable to the State of Jammu and Kashmir, are available to the Permanent
Residents. Section 10, therefore, merely reiterates the intention of the
Constitution (Application to Jammu and Kashmir) Order, 1954, and seeks to
remove any irreconcilability between the Constitution (Application to Jammu and
Kashmir) Order, 1954, and the Constitution of Jammu and Kashmir. Section 10 does
not create the fundamental rights embodied by the Constitution of India, nor
does it create any title to such fundamental rights. The intended effect of
Section 10, to restrict the fundamental rights to the Permanent Residents of the
State, operates subject to the provisions of the Constitution of India and does
not deprive the people of the State, who are excluded from the definition of the
Permanent Residents of the State, by any law made by the State Legislature, of
the fundamental rights embodied by the Constitution of India and guaranteed to
them by the Constitution (Application to Jammu and Kashmir) Order, 1954. To the
extent, Section 10 of the Constitution of Jammu and Kashmir impinges upon the
fundamental rights guaranteed by the Constitution of India, it loses its effect.
The fundamental rights envisaged by the Constitution of India are not conferred
on the people of the State by Section 10 of the Constitution of Jammu and
Kashmir, but by the Constitution of India as it is applicable to the State by
virtue of the Constitution (Application to Jammu and Kashmir) Order, 1954. The
fundamental rights available in the State are, therefore, enumerated within the
meaning of Constitution of India and are enforced in the State by the
instrumentalities, which exercise authority drawn from the Constitution of
India.
The fundamental right to equality before law and equal
protection of laws, embodied in Article 14; right to protection against
discrimination on grounds of religion, race, caste, sex, place of birth, right
to protection against any disability, liability or restriction on access to
shops, public restaurants, hotels, places of public entertainment, or use of
wells, tanks, bathing ghats, roads and places of public resort maintained wholly
or partly out of the State funds or dedicated to the use of general public on
grounds of race, religion, race, caste, sex or place of birth embodied by
Article 15 and right to equality of opportunity for all citizens in matters
relating to employment or appointment to any of rice under the State and
protection against discrimination on grounds of religion, race, caste, sex,
descent and place of birth are applicable to the Jammu and Kashmir State.
However, there are two restrictions, which are placed on these rights in their
applicability to the State :
(a) In the first place the Constitution of
India empowers the State to make special provisions for women, children,
socially and educationally backward sections of society, scheduled castes and
tribes and reserve appointments and posts for the backward sections of
society, which are not adequately represented in the services offered by the
State.
(b) In the second place Article 35 added by
the President's Order, to the fundamental rights in their application to Jammu
and Kashmir, reserves the right to the State of Jammu and Kashmir, to classify
Permanent Residents and provide special rights and privileges for them.
The provisions of Articled,
which prohibit untouchability and the provisions of
Article 18, which forbid the State to award titles and
honors, except the academic and military titles, are
applicable to the State without any exceptions.
The right to freedom envisaged by Article 19 is applicable
to the State without any restrictions and reservation. Article 19 embodies seven
fundamental freedoms: freedom of speech and expression; freedom of Assembly,
freedom of association; freedom of movement; freedom of residence and
settlement; freedom of property; freedom of profession, occupation, trade and
business.
The right to protection against punishments for ex-post
facto laws, protection against prosecution and punishment for the same offence
more than once, protection against self-incrimination, embodied by Article 20,
is also applicable to Jammu and Kashmir without any exceptions and reservations.
The right to life and personal liberty, embodied in
Article 21 is applicable to Jammu and Kashmir without exception. However, the
right to protection against arbitrary arrest and detention embodied by Article
22, is applicable to the State with two exceptions, which pertain to preventive
detention and safeguards against arbitrary use of preventive detention. Article
22 provides for preventive detention which is aimed to "prevent the abuse
of freedom of anti-social and subversive elements which might the endanger
national welfare" of the country. Article 22, further envisages
provisions, which provide for safeguards against any arbitrary use of preventive
detention. No person can be detained except by authority of law providing for
preventive detention. No person can be detained for a period exceeding three
months. Wherever the period exceeds three months, it must be authorized by an
Advisory Board, constituted of Judges of the High Court or persons qualified to
be appointed the Judges of the High Court. Preventive detention can be extended
to a maximum limit prescribed by law made by the Parliament. The grounds on
which detention is affected are required to be communicated to the detenue and
he is to be given opportunity to make a representation against his detention at
the earliest.
Parliament is vested with the power to prescribe by law
the circumstances under which detention may be extended beyond three months
without obtaining the opinion of an Advisory Board and the procedure to be
followed by an Advisory Board in determining cause for extension of detention
exceeding three months. The exceptions admitted in the application of the
provisions with regard to the preventive detention to Jammu and Kashmir are:
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Entry 3 of the Concurrent List of the Seventh Schedule of
the Constitution of India, is not applicable to Jammu and Kashmir State and the
Parliament of India is not vest with any concurrent powers to legislate in
regard to preventive detention for reasons of security of the State, the
maintenance of supplies and services and persons subjected to preventive
detention; and
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The provisions of the Constitution of India with regard to
the powers of the Parliament to authorizing detention exceeding three months,
without obtaining the opinion of the Advisory Boards, determine the maximum
period of preventive detention and prescribe procedure to be followed by the
Advisory Boards, are not applicable to Jammu and Kashmir and the powers of the
Parliament are, instead vested with the State Legislature.
In the application of the
provisions of Article 22 to the Jammu and Kashmir
State, the State Legislature is vested with powers
with regard to prevention detention, which on other
State Legislature in India exercises. The State
Legislature is armed with considerable power and
arbitrary decision in matters of preventive detention.
The aim to vest the power to provide for preventive
detention in the Parliament is to ensure that the
vital issue of preventive detention is not left to the
whims and caprices of the local political majorities
and the strains of the politics in the States do not
undermine the safeguards against arbitrary detention.
Obviously, the Parliament of India is likely to
visualize the issues of preventive detention from the
point of view of national security and not from the
narrow focus of the petty and of often the parochial
interests of the political parties in power in the
States.
The right against exploitation, embodied in Article 23 is
applicable to Jammu and Kashmir without any exception. The provisions of Article
24, which prohibit the employment of children of less than fourteen years of age
in factories, mines and other hazardous occupation, are also applicable to the
State without any reservations.
The right to freedom of faith and religion envisaged by
Article 25, and the right to establish and maintain institutions for religious
and charitable purposes, the rights of the minorities to manage their own
affairs in matters of religion and to own and acquire property and administer
such property in accordance with law; are also applicable to the Jammu and
Kashmir State without any exception. The right to protection against compulsion
to pay taxes, the proceeds of which are appropriated in payment of expenses for
the promotion or maintenance of religion or religious denomination, is also
applied to the Jammu and Kashmir State, The prohibition on the provision of
religious instruction in education institutions maintained out of State funds,
and the right against being compelled to attend any religious instruction
imparted in educational institutions, recognized by the State or receiving aid
out of State funds, are also applicable to the State of Jammu and Kashmir with
any exceptions.
Article 29, which envisages protection to every section of
citizens, having a distinct language, script or culture to preserve their
language, culture and script, is applicable to the State without any exception.
The rights of the minorities to establish and administer their educational
institutions and the right of such institutions to receive aid envisaged by
Article 30, are also applicable to the Jammu and Kashmir State.
The right to property, envisaged by Article 31 of the
Constitution of India was applied to Jammu and Kashmir with several reservation
and exceptions. The right to property was however, expunged from the
Constitution of India by the Forty-fourth Amendment. Amendment to the
Constitution of India is applied to the State by an enabling order, promulgated
by the President of India in accordance with the Constitution (Application to
Jammu and Kashmir) Order, 1954. No such enabling order was ever promulgated by
the President of India extending the effect of the Forty-fourth Amendment to the
State. Consequently the right to property envisaged by the Constitution of India
is still applicable to Jammu and Kashmir. In its application to Jammu and
Kashmir State, Article 31 provides:
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That no person is deprived of his property except by
authority of law;
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That property can be acquired for public purposes alone by
authority of law, which provides for acquisition or requisition of property for
an amount which may be fixed by such law or which may be determined in
accordance with such principles as may be specified in such law;
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That no law providing for acquisition of property, and the
fixation of the amount payable against such acquisition, can be called in
question in any court on the ground that the amount fixed is inadequate or paid
otherwise than in cash. The right to property available to the people of the
State is subject to several limitations. The provisions of existing law in the
State with regard to the acquisition of property for public purposes and the
payment of compensation are not prejudiced by the application of the right to
property to the State. The State Legislature is vested with powers to undertake
legislation to implement the Directive Principles of State Policy, envisaged by
the Constitution of Jammu and Kashmir. No such laws made by the State
Legislature can be called in question in any court of law on the ground that
they violate fundamental rights envisaged by Articles 14 and 19 of the Indian
Constitution in their application to the State.
The State legislature is vested
with unrestricted powers to undertake legislation
providing for acquisition of property, the mode and
manner of the payment of compensation for the property
acquired, the acquisition of landed estates and the
extinguishments and modification of interests in
corporations and mining and mineral products. Landed
estates are defined by the Presidential Order as the
land which is occupied or has been let for
agricultural purposes or for purposes subservient to
agriculture or for pastures including:
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Building sites on such lands;
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Trees standing on such lands;
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Forest lands;
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Wooded waste;
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Areas under fields floating over water;
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Sites of Jandars and Gharats;
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Jagirs, Inams, Maufis, Mukararies and other land grants,
excluding building sins near towns or villages and land reserved for
municipalities, notified areas or town planning.
The Constitution of India
provides for constitutional remedies for the
enforcement of the fundamental rights. The provisions
of the Constitution with regard to such remedies
are applicable to the Jammu and Kashmir State with two
modifications. First, in regard to the Jammu and
Kashmir State the Parliament of India cannot empower
any other court to issue writs and orders in Jammu and
Kashmir, for the enforcement of fundamental rights. A
special clause, sub-clause (2-a), is added to Clause 2
of Article 32 and the High Court of Jammu and Kashmir
is vested with the power to issue to any person or
authority, in appropriate cases, or the Government
within those territories, directions or orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or
any of them, for the enforcement of any of the
fundamental rights. Secondly, a new Article numbered
35-A, is added to Part III of the Indian Constitution,
by the Constitution (Application to Jammu and Kashmir)
Order, 1954. Article 35-A stipulates:
Notwithstanding anything contained in this Constitution,
no existing law in force in the State of Jammu and Kashmir, and no law hereafter
enacted by the Legislature of the State, (a) defining the classes of persons who
are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b)
conferring on such permanent residents any special rights and privileges or
imposing upon other persons any restrictions as respects:
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Employment under the State Government;
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Acquisition of immovable property in the State;
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Settlement in the State; or
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Right to scholarships and such other forms of aid as State
Government may provide.
shall be void on the ground that
it is inconsistent with or takes away or abridges any
rights conferred on the other citizens of India by any
provisions of this Part.
Article 35-A, in effect, saves all such laws which are in
force in the State, and which define the Permanent Resident of the State and
confer on them special rights and privileges in regard to the employment under
State Government, acquisition of immovable property in the State, settlement in
the State, and the grant of scholarships and such other forms of aid as the
State Government provides, from being declared void on the ground that such laws
take away or abridge the Fundamental Rights, conferred on the citizens of India.
Article 35-A further reserves the right to the State Legislature to enact any
law to define the Permanent Residents of the State and confer upon them special
rights and privileges with regard to the matter of employment, acquisition of
immovable property, settlement in the State and grant of scholarship and other
aids the State Government provides. Laws made by the State Legislature in
pursuance of Article 35-A are not deemed to be void on the ground that they
violate or abridge the Fundamental Rights.
Evidently Article 35-A encroaches provisions, which are
severely pernicious and vest in the State Legislature wide powers to:
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Confer upon the Permanent Residents of the State special
rights and privileges in terms of employment under the State Government,
acquisition of immovable property in the State, settlement in the State and the
scholarships and other forms of aid provided by the State Government, to the
exclusion of the citizens of India, who reside in the State but are not defined
as the Permanent Residents of the State;
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Exclude Permanent Residents of the State or sections of
the Permanent Residents of the State from the definition of the Permanent
Residents, and to deprive them of the rights and privileges the Permanent
Residents of the State enjoy;
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Include, Indian citizens or section of Indian citizens
within the definition of the Permanent Residents of the State to the exclusion
of other Indian citizens.
Section 35-A allows the State
Legislature to define the class of Permanent Residents
and provide the Permanent Residents special rights and
privileges to the exclusion of the other people of the
State who are not the Permanent Residents of the
State. There is wide scope for the State Legislature
to enact any discriminatory legislation, and to
deprive any section of the people of the State from
the rights and privileges, which they are entitled to
as the Permanent Residents. The State legislature is
empowered to include any person, even if he were not a
citizen of India within the definition of the
Permanent Residents of the State from any such
definition. There is an inherent conflict between the
rights conferred on the people of the State and the
provisions of the Constitution of the State which
resort to classifications on grounds of community,
region, religion and class, and the successive State
Governments have actually used to channelise patronage
into lines preferred by them.
The authority vested in the State Legislature to define
the classes of people, which are entitled to special rights and privileges
violates the spirit of the Constitution of India, which vests no authority with
the Government of India or the governments in the Indian States, to determine
the scope of the fundamental rights guaranteed by the Constitution of India.
Rights are fundamental only in case they are placed out of the reach of the
government and that is accomplished by Article 13 of the Constitution of India
so long as Article 13 is applicable to the Jammu and Kashmir State, universal
limitations are imposed on any authority within the State including the State
Legislature to enact discriminatory legislation in accordance with the
provisions of Article 35-A of the Constitution of India or the provisions of the
Constitution of the State.
Union Government
The provisions of the Constitution of India, with regard
to the Union Government, which are embodied in Part V of the Constitution, are
applicable to the Jammu and Kashmir State with certain reservations. The
legislative competence and the executive authority of the Union Government is
extended to the subjects which are placed within the ambit of the Union
Government in accordance with the scheme of the division of powers between the
Union and the State of Jammu and Kashmir, envisaged by Article 370. Ordinarily,
therefore, the authority of the Union Government and the jurisdiction of it,
instrumentalities, operate throughout the State within the specified limits. The
provisions of the Constitution with regard to the organization of the Union
executive are applicable to the State without any reservations. The provisions
with regard to the composition of the Union Parliament are applicable to the
State with an exception that the State is allocated a fixed number of seats in
the Lok Sabha and the delimitation of constituencies for the election to the Lok
Sabha is made by the Delimitation Commission under the Delimitation Commission
Act.
Supreme Court
The provisions of the Constitution of India with regard to
the Supreme Court of India are applicable to the State with three exceptions:
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The Court is not vested with the jurisdiction of the
Federal Court in regard to the Jammu and Kashmir State;
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The appellate jurisdiction of the Court cannot be enlarged
by the Parliament without having received a request to that effect from the
State; and
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In regard to the Jammu and Kashmir State the Parliament is
not empowered to confer on the Supreme Court powers to issue directions, orders
and writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari for purposes other than the enforcement of the fundamental
rights.
Subject to these reservations,
the jurisdiction of the Supreme Court extends to Jammu
and Kashmir in all its aspects including the authority
to enforce the fundamental rights envisaged by the
Constitution of India and applicable to the State. The
original jurisdiction of the Court extends to all
disputes between the Jammu and Kashmir State and the
Union of India, between the State with other States
and the Union of India and between the State and the
other States of India. The appellate jurisdiction of
the Supreme Court extends to all constitutional, civil
and criminal cases adjudicated upon by the lower
courts, including the High Court of Jammu and Kashmir.
Law declared by the Supreme Court is binding in the
territories of India including the State of Jammu and
Kashmir.
The Supreme Court is empowered to review laws made by the
State Legislature and the administrative action undertaken by the State
Government. The power of the judicial review, the Court exercises in regard to
Jammu and Kashmir, has wider implications than those of the power of review
which the Court exercise in regard to the other states in India. The Court
exercises the power to ascertain whether any modifications introduced by Article
370, by the orders promulgated by the President of India, are consistent with
the provisions of the Constitution of India. The Court has also the power to
ascertain whether the provisions of the Constitution of Jammu and Kashmir and
amendments made in the Constitution of Jammu and Kashmir are consistent with the
provisions of the Constitution of India. The Court has also the power to
ascertain whether legislation and administrative action undertaken by the State
Government is in consonance with the provisions of the Constitution of India as
well as the Constitution of Jammu and Kashmir. Lastly, the Court has the power
to review the decisions of the High Court of Jammu and Kashmir State. The power
of judicial review exercised by the Supreme Court, therefore extends to:
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Application (Jammu and Kashmir) Order, promulgated by the
President of India, modifying the operation of the provisions of Article 370;
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The provisions of the Constitution of Jammu and Kashmir
and the amendments made to it;
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The instruments created by the Constitution of Jammu and
Kashmir;
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The legislation undertaken by the Legislature of the Jammu
and Kashmir State; and
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The administrative action undertaken by the State
Government.
Services
The provisions of the Constitution of India with regard to
the services do not apply to the Jammu and Kashmir State, except in regard to
the powers of the Parliament to create one or more all India services common to
the Union and the States and regulate and recruitment and conditions of service
of any such services. Article 312 of the Constitution of India empowers the
Parliament to create new all India services and regulate the conditions of
service in such services, provided the Council of States adopts a resolution by
a two-third majority of its members present and voting to that effect. The
services classified as the Indian Administrative Service and the Indian Police
Service is deemed to be services created by the Parliament. The provisions with
regard to the organization and powers of the Union Public Service Commission are
applicable to the State without any limitations.
Elections
The provisions of the Constitution of India with regard
to the election is applicable to Jammu and Kashmir with certain major
modifications. The superintendence, direction and control of the preparation of
the electoral rolls, conduct of all elections to the Parliament and to the
Legislature of the State and the election to the offices of the President and
Vice-President, are vested in the Election Commission of India. However, the
provisions of the Constitution of India, which forbid the exclusion of any
person from the electoral rolls on account of religion, race, caste or sex, are
not applicable to Jammu and Kashmir. The provisions of the Constitution of India
that law made by the Parliament in regard to the delimitation of the
constituencies cannot be called into the question in any court of law, do not
apply to the State. The limitations imposed by the Constitution of India, on
courts to hear cases of elections, are also not applicable to Jammu and Kashmir.
The Constitution of Jammu and Kashmir embodies provisions for the electoral
rolls and the delimitation of the constituencies and the power of the courts to
hear cases about the elections. The Constitution of Jammu and Kashmir provides
for a general electoral roll for every territorial constituency and no person is
liable to be excluded from any electoral roll on the ground of religion, race,
castes or sex. The Constitution of Jammu and Kashmir provides for adult suffrage
and every permanent resident of the State, who is of eighteen years of age or
more, is entitled to be registered as a voter at any election. The Constitution
of the State empowers the State Legislature to make laws in regard to the
delimitation of the constituencies, preparation of the electoral rolls and
the appointment of election tribunals, and all other "matters necessary for
securing the due constitution of the two houses".
The Constitution of the State further provides that the
validity of any law made by the State Legislature in connection with the
election and the validity of the elections of either House of the
Legislature is not subject to be questioned in any court.
Emergency Powers
The Constitution of India, vests with the President of
India extraordinary powers to deal with emergencies arising out of war,
aggression, threat of war or internal disturbances, constitutional breakdown in
the States and the breakdown of the financial stability. The Constitution of
India empowers the President to impose a state of emergency in case:
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The security of India is threatened by war or threat of
war, aggression or internal disturbances;
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The constitutional government in the States suffers a
breakdown; and
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The financial stability and the credit of India is
threatened.
The provisions of the
Constitution of India arising out of war, aggression
and internal disturbances, are applicable to the Jammu
and Kashmir State with the exception that the
proclamation of emergency made on grounds of internal
disturbance can have effect in relation to the Jammu
and Kashmir State after the concurrence of the
Government of the State is sought or a request is made
by the Government of the State that the effect of the
proclamation be extended to the State.
In case of the emergency arising out of war, aggression
and internal disturbance:
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The Union Government is empowered to issue administrative
directions to Government of Jammu and Kashmir;
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The Parliament is empowered to legislate on the residuary
powers vested with the Jammu and Kashmir State, by virtue of Article 370;
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The President of India is empowered to modify the
provisions pertaining to the allocations of revenues between the Union and Jammu
and Kashmir
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The President of India is empowered to restrict or suspend
the enforcement of the fundamental rights in the State.
The provision of the
Constitution of India with regard to the emergency
arising out of constitutional breakdown in the States
is applicable to Jammu and Kashmir without any
exception or reservation. Accordingly, the President
of India, being satisfied that the government of the
State cannot be carried on in accordance with the
Constitution, is entitled to assume the powers of the
State Government, empower the Parliament to exercise
the powers of the State Legislature, and make laws and
delegate powers to sanction expenditure in case the
House of the People is not in session. The emergency
arising out of constitutional breakdown in the State
can be extended a period of three years.
The provisions of the Constitution of India with regard to
emergency powers of the President, were drastically amended by the Forty-Fourth
Amendment to the Constitution of India. In accordance with the Forty- Fourth
Amendment the emergency arising out of internal disturbance can be proclaimed by
the President only if their is armed rebellion and it poses a threat to the
security of the country. Secondly the emergency arising out of constitutional
breakdown can remain in force for six months to a maximum period of one year.
The Forty-Fourth Amendment to the Constitution of India has not been made
operative in regard to the Jammu and Kashmir State. The provisions of Article
356, which envisage the provisions with regard to constitutional breakdown apply
to Jammu and Kashmir, as they were envisaged prior to the Forty-Fourth Amendment
to the Constitution of India.
The President's powers to proclaim an emergency arising
out of financial instability of India cannot be extended to the Jammu and
Kashmir State. The application of Article 360, which envisages the provisions
pertaining to the financial emergency arising out of financial instability, is
not extended to the State.
Amendment
The provisions for the amendment of the Constitution of
India are envisaged by Article 4, 169,239-A and Article 368 of the Constitution.
Article 4 provides for the creation of new states and the reorganization of the
existing States. Article 169 provides for the creation and the abolition of the
second chambers in the State Legislatures. Article 239-A provides for the
amendment of the provisions pertaining to the administration of the Union
territories. Article 36X embodies provisions for the amendment of the remaining
provisions of the Constitution of India.
Article 4 and Article 239-A of the Constitution of
India are applicable to Jammu and Kashmir without any reservation or exception.
Article 169 is not applicable to the State. Article 368 is applicable to the
Jammu and Kashmir State with a specific limitation that no amendment in the
Constitution of India can have effect in relation to the Jammu and Kashmir
State, unless the amendment is applied to the State by an order promulgated by
the President with the concurrence of the State Government.
Official Language
The provisions of the Constitution of India with regard to
Official Language apply to the State of Jammu and Kashmir only in so far as they
relate to:
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Official language of the Union;
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Official language for communication between the Union and
the States; and
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The language in which the proceedings of the Supreme Court
are conducted.
The Constitution of Jammu and
Kashmir makes provisions for the official language of
the State. Urdu is recognized as the official language
of the State, though English continues to be used as
the official language until the State Legislature
provides otherwise. The regional languages recognized
by the Constitution of Jammu and Kashmir are:
Kashmiri, Dogri, Balti, Dardi, Punjabi, Pharai and
Ladakhi.
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