Table of Contents
   Index
   About the Author
   Introduction
   Preface 
   Indian Federalism
   Integration of States
   Article 370
   The Constituent Assembly
   Federal Jurisdiction
   Division of Powers
   State Apart
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Chapter 5: Federal Jurisdiction

The 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:
  • Provisions, which are not applicable to the Jammu and Kashmir State;
  • Provisions, which are applicable to the Jammu and Kashmir State; and
  • 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:

  • 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;
  • Who or whose parents settled in the State before 1885;
  • Who or whose parents settled in the State before the year 1911, and acquired immovable property in the State;
  • Who or whose parents settled in the State before 14 May 1945, and acquired immovable property in the State;
  • 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;
  • 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:

  • 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
  • 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:

  • That no person is deprived of his property except by authority of law;
  • 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;
  • 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:
  • Building sites on such lands;
  • Trees standing on such lands;
  • Forest lands;
  • Wooded waste;
  • Areas under fields floating over water;
  • Sites of Jandars and Gharats;
  • 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:

  • Employment under the State Government;
  • Acquisition of immovable property in the State;
  • Settlement in the State; or
  • 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:

  • 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;
  • 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;
  • 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:

  • The Court is not vested with the jurisdiction of the Federal Court in regard to the Jammu and Kashmir State;
  • The appellate jurisdiction of the Court cannot be enlarged by the Parliament without having received a request to that effect from the State; and
  • 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:

  • Application (Jammu and Kashmir) Order, promulgated by the President of India, modifying the operation of the provisions of Article 370;
  • The provisions of the Constitution of Jammu and Kashmir and the amendments made to it;
  • The instruments created by the Constitution of Jammu and Kashmir;
  • The legislation undertaken by the Legislature of the Jammu and Kashmir State; and
  • 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:

  • The security of India is threatened by war or threat of war, aggression or internal disturbances;
  • The constitutional government in the States suffers a breakdown; and
  • 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:

  • The Union Government is empowered to issue administrative directions to Government of Jammu and Kashmir;
  • The Parliament is empowered to legislate on the residuary powers vested with the Jammu and Kashmir State, by virtue of Article 370;
  • The President of India is empowered to modify the provisions pertaining to the allocations of revenues between the Union and Jammu and Kashmir
  • 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:

  • Official language of the Union;
  • Official language for communication between the Union and the States; and
  • 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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Kashmiri Overseas Association, Inc. (KOA) is a 501c(3) non-profit, tax-exempt socio-cultural organization registered in Maryland, USA. Its purpose is to protect, preserve, and promote Kashmiri ethnic and socio-cultural heritage, to promote and celebrate festivals, and to provide financial assistance to the needy and deserving.

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World Kashmiri Pandit Conference, 1993
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