Constitution of Jammu and Kashmir

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The Constitution of Jammu and Kashmir is the legal document which establishes the framework of government at state level in Indian state of Jammu and Kashmir. The present constitution was adopted on 17 November 1956, and came into effect on 26 January 1957. As of 2002, 29 amendments have been affected to the Constitution.[1]

Constitution of India grants special status to Jammu and Kashmir among Indian states, and it is the only state in India to have a separate constitution. Article 370 of the Constitution of India states that Parliament of India and the Union Government jurisdiction extends over limited matters with respect to State of Jammu & Kashmir, and in all other matters not specifically vested in Federal governments, actions have to be supported by state legislature.[2][3] Also, unlike other states, residual powers are vested in state government. Because of these constitutional provisions, the State of Jammu & Kashmir enjoys autonomy not enjoyed by other states. Among notable and visible differences with other states, till 1965, the head of state in Jammu & Kashmir was styled Sadr-e-Riyasat, whereas in other state, the title was Governor, and head of government was styled Prime Minister in place of Chief Minister in other states.

Historical aspect[edit]

India gained its independence from the United Kingdom on midnight of 15 August 1947 IST, and simultaneously Pakistan was created as a new country as a result of the partition of India. Jammu & Kashmir, then a princely state under suzerainty of British Monarch, and ruled by the Maharaja Hari Singh tried to avoid declaring his state's accession to either of the two dominions at the time of independence (although that was not an option under the Indian Independence Act, 1947). A Muslim majority state ruled by Hindu Maharaja Hari Singh (then the ruler of the state), government of the state signed a standstill agreement with Pakistan. However, on 6 October 1947, Pakistani Muslim tribes, supported by the government of Pakistan, attacked Jammu & Kashmir on the behest of Pakistan to achieve forcible accession to Pakistan. Maharaja Hari Singh requested assistance from India, and when India requested an Instrument of Accession to India, Maharaja signed it so that India could help in defense.

The Instrument of Accession (IoA) gave only limited powers to the Government of India, only about the three subject matters of Foreign affairs, Defence and Communications. It was similar to several hundred others IoA signed between the Government of India and other princely states. Whereas the other states later signed merger agreements, the relationship of Jammu and Kashmir with the Union of India was governed by special circumstances. In view of them, the Article 370 was incorporated in the Constitution. The Constitution of Jammu & Kashmir, which Maharaja (later Sadr-e-Riyasat) Dr. Karan Singh signed into law in 1957, is still in force.[4] [5]

Salient Features[edit]

The Constitution, as of 2002, has 158 articles divided into 13 parts and 7 schedules. The divisions of articles is as follows. The numbers in braces after show the articles included in a particular part.

  • Part I: Preliminary (1-2)
  • Part II: The State (3-5)
  • Part III: Permanent Residents (6-10)
  • Part IV: Directive Principles of State Policy (11-25)
  • Part V: The Executive (26-45)
    • The Governor (26-34)
    • The Council of Ministers (35-41)
    • The Advocate General (42)
    • Conduct of Government Business (43-45)
  • Part VI: The State Legislature (46-92)
    • Composition of the State Legislature (46-50)
    • General Provisions (51-56)
    • Officers of the State Legislature (57-63)
    • Conduct of Business (64-67)
    • Disqualification of Members (68-71)
    • Powers, Privileges and Immunities of the State Legislature and Its members (72-73)
    • Legislative Procedure (74-78)
    • Procedure In Financial Matters (79-84)
    • Procedure Generally (85-90)
    • Legislative power of the Governor (91)
    • Breakdown of Constitutional Machinery (92)
  • Part VII The High Court (93-113)
    • Subordinate Courts (109-113)
  • Part VIII: Finance, Property and Contracts (114-123)
  • Part IX: The Public Services (124-137)
    • The Public Service Commission (128-137)
  • Part X: Elections (138-142)
  • Part XI: Miscellaneous Provisions (143-146)
  • Part XII: Amendment of the Constitution (147)
  • Part XIII: Transmonal Issues (153-158)

Articles 148 to 152 have been omitted in Part XIII.

Schedules:

  • Schedule I: Omitted (Repealed)
  • Schedule II: Emoluments, Allowances and Privileges of the Governor
  • Schedule III: Salaries and allowances of the Speaker and Deputy Speaker of the Legislative Assembly and the Chairman and the Deputy Chairman of the Legislative Council
  • Schedule IV: Salaries, allowances and other conditions of service of the Judges of the High Court.
  • Schedule V: Forms of Oaths or affirmations
  • Schedule VI: Regional Languages
  • Schedule VII: Provision as to disqualification on ground of defections

Although India has a unitary citizenship, Constitution of Jammu & Kashmir defines a concept of Permanent Residency, in Part III. This concept is functionally similar to citizenship, and permanent residents of the State enjoy rights not enjoyed by non-residents. Citizens of India who do not have permanent residency in the State have limited property ownership rights.

Preamble[edit]

Preamble to the Constitution of Jammu and Kashmir is as quoted below.

"WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,

having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves-

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among us all;

FRATERNITY assuring the dignity of the individual and the unity of the nation;

IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE

TO OURSELVES THIS CONSTITUTION."
— -Preamble of Constitution of Jammu & Kashmir.[1]

The preamble resembles almost verbatim to the Preamble to the Constitution of India.

Jurisdiction of Parliament[edit]

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.[6] Government of India can declare emergency in Jammu and Kashmir and impose Governor's rule in certain conditions. Matters related to Defense, Foreign relations, Communication and Finance of Jammu and Kashmir is under jurisdiction of Constitution of India.

Union Legislature has very limited jurisdiction in case of J&K in comparison with 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[edit]

The Union of India has no power to declare Financial Emergency under Article 360 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[edit]

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 has not been extended to J&K.

Official Languages[edit]

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.

Relations with Government of India[edit]

  • Article 3 in part 2 of the J & K constitution reads as, "Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India."[7][8]
  • Article 5 of the part 2 is about extent of "Executive" and "Legislative" powers of the state which tells that Jammu and Kashmir Legislative Assembly has executive and legislative power of all matters except those with respect to which Parliament of India has power to make laws for the State under the provisions of the Constitution of India.[7] Sectors in which Government of India can make laws for Jammu and Kashmir includes Defense sector, Foreign affairs, Finance and Communication.[2][3]
  • Article 147 of Part 12 is about amendment of the J & K Constitution which states that, "No Bill shall be introduced or moved in State Legislative Assembly to amend or change above mentioned articles 3 and 5."[9]

Relations with Pakistan administered Kashmir[edit]

  • Article 48 of Part VI of J and K constitution defines Pakistan Administered Kashmir as "Pakistan Occupied Territory".[10]
  • There are currently 87 seats in J & K State assembly, but article 48 of J & K constitution also recognizes 24 seats from Pakistan administered Kashmir and mentions that these 24 seats will remain vacant till Pakistan ceases the "occupation" of Kashmir and the said area shall be excluded in delimiting the territorial constituencies till that time.[11]

Miscellaneous[edit]

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)).

See also[edit]

References[edit]

  1. ^ a b "Constitution of Jammu and Kashmir"
  2. ^ a b "Inside "Indian held Kashmir".". The Express Tribune. 25 February 2015. Retrieved 7 May 2015. 
  3. ^ a b "Article 370". General Knowledge Today. 17 January 2015. Retrieved 7 May 2015. 
  4. ^ http://timesofindia.indiatimes.com/india/Integral-review-of-Article-370-overdue-but-needs-cooperation-not-confrontation-Congress-leader-Karan-Singh/articleshow/35733023.cms
  5. ^ http://middleeast.about.com/od/pakistan/a/kashmir-history-backgrounder.htm
  6. ^ "Central acts applicable to J&K state" (PDF). Retrieved 23 August 2014. 
  7. ^ a b "Constitution of Jammu and Kashmir" (pdf). Official Website of J & K Legislative Assembly. p. 3. Retrieved 6 May 2015. Read page 3 of the document or page 21 of pdf format. 
  8. ^ "SC rejects HC ruling: No sovereignty for J&K outside Constitution of India". 
  9. ^ "Article 147 of Constitution of Jammu and Kashmir" (pdf). Official Website of Jammu and Kashmir Legislative Assembly. p. 67. Retrieved 7 May 2015. Document page 67, PDF page 85. 
  10. ^ "Article 48 of Constitution of Jammu and Kashmir" (PDF). Official Website of Jammu and Kashmir Legislative Assembly. p. 16. Retrieved 7 May 2015. Page 16 of document and page 34 of pdf 
  11. ^ "Article 48 of Constitution of Jammu and Kashmir" (PDF). Official Website of Jammu and Kashmir Legislative Assembly. p. 17. Retrieved 7 May 2015. Page 17 of document and page 35 of pdf 

External links[edit]