Explain The Constitutional Status Of Jammu And Kashmir

On 5th August 2019, a Presidential order titled “Constitution (Application to Jammu & Kashmir) Order, 2019” changed the 62 years old constitutional status of Jammu and Kashmir. Before that, there was a separate constitution of Jammu and Kashmir which came into effect on 26th January 1957. The order abrogates Constitution (Application to Jammu and Kashmir) Order, 1954 and states that all the provisions of the Constitution of India shall apply to the State of Jammu and Kashmir. It is also added a clause in Article 367.

The power to make a separate constitution in Jammu and Kashmir was given through Article 370. This was incorporated in the constitution on 17th October 1949 in Part XXI. The article became operative on 17th November 1952. The chief drafter of this article was Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet and a former Diwan to Maharajah Hari Singh of Jammu and Kashmir). As per the provisions of the Article:

1. There was an autonomous status to the state of Jammu and Kashmir. Most of the laws in the Constitution of India were not applied in the state.

2. There was a separate Constituent Assembly for the state. The assembly was dissolved on 25thJanuary 1957.

3. The Centre can only make laws in the matter of defense, foreign affairs and communication for the state. The laws of the Centre on matters other than these were applicable only when the constituent assembly or the legislature of the state implemented it.

4. No jurisdiction of Supreme Court was applicable in the state.

5. No person other than the citizen of the state could buy land in the state.

6. The people of the state were enjoying dual citizenship. One of India and other of the state. If any woman from the state married a person from another state then her citizenship of the state was bound to be seized and she was also barred from the property of the family. {This clause was removed by Jammu and Kashmir High Court in October 2002 in the case of State of Jammu & Kashmir v. Dr. Susheela Sawhney (AIR 2003 J K 83)}

The question of special status to Jammu and Kashmir was asked in the constituent assembly by Maulana Hasrat Mohini in October 1949. In reply to that, Gopalaswami Ayyangar said that Kashmir is not yet ready for integration. India had been at war with Pakistan over this issue and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.” In addition to that, he argued that the matter is raised in the United Nations. Once it is resolved, Kashmir will be fully involved in the Union of India.

After that, there will be a referendum which will decide the fate of the state. Till then, this is only a temporary provision. Before that, In October 1947, the Maharaja Hari Singh (then King of Kashmir) signed the ‘Instrument of Accession’, which specified three subjects on which Jammu and Kashmir would transfer its powers to the government of India: 1. Foreign affairs, 2. Defence and 3. Communications. In March 1948, an interim government was formed in the state, with Sheikh Abdullah as the prime minister. In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and demanded special status for the state which leads to the adoption of Article 370.

Apart from that, there was another Article known as Article 35A which provided special status to the people of Jammu and Kashmir. This was incorporated through Constitution (Application to Jammu and Kashmir) Order, 1954. It enabled full discretionary powers to the state legislature to decide who are the ‘permanent residents’ of the state. It mentioned that no law of the state legislature that comes under it can be challenged for violating the Constitution or any other laws. Apart from these, it says that:

1. Only permanent residents of the state have the right to own immovable property, settle permanently, or avail of state-sponsored scholarship schemes.

2. Only permanent residents can obtain a state government job.

3. Only permanent residents can take admission in the government college of the state and can avail any form of government aid.

4. Only permanent residents can obtain a state government job.

5. Companies operating in the state are bound to hire only permanent residents for its operation in the state.

The constitutional status is that it is no longer a state. It is bifurcated in two Union territories known as ‘Union Territory of Jammu & Kashmir’ and ‘Union Territory of Ladakh’. This was done by Jammu and Kashmir (Reorganization) Bill 2019 which was passed by Parliament on 6th August 2019. The bill has also got the assent of President on 7th August 2019. The following characteristics of the bill are:

1. State of Jammu and Kashmir will be divided into two Union territories – the Union Territory of Ladakh, comprising of the two districts of Kargil and Leh and the Union Territory of Jammu and Kashmir, comprising of the remaining parts of the state.

2. Both the Union Territories will be administered by Lieutenant Governor appointed by President under Article 239 of the Constitution.

3. Members of Indian Administrative Service, Indian Police Service, and the Indian Forest Service will work under the present cadre until the Central Government specifies their allocation between the successor Union Territories. In future, they will work under AGMUT cadre which works in the states of Arunachal Pradesh, Goa, Mizoram and other Union Territories.

4. The Lieutenant Governor has the discretion in all matters related to the All India Services and the Anti-Corruption Bureau and he is not bound to perform on the advice of ministers.

5. The Jammu and Kashmir Public Service Commission will become the Public Service Commission of the Union Territory of Jammu Kashmir and Ladakh will work under Union Public Service Commission.

6. Jammu and Kashmir will have 107 seated legislative assembly with a term of 5 years under Article 239A of the Constitution. In these, 24 seats will remain vacant as these are occupied by Pakistan. In addition to that Lieutenant Governor will nominate 2 women members in the assembly. Ladakh will not have a legislative assembly.

7. Legislative assembly can make laws in the matter of subjects enshrined under State list and Concurrent list except for public order and police.

8. The Legislative Council of the existing state of Jammu and Kashmir has been abolished. All bills pending in that lapse.

9. High Court of Jammu and Kashmir will be the common High Court for both the Union Territories.

10. Bar Council of Jammu and Kashmir is replaced with the “Bar Council of Jammu and Kashmir, and Ladakh”

11. Any person entitled to practice in any subordinate court in the existing state of Jammu and Kashmir shall be entitled to practice in such court for a period of 1 year, even though any part of such territory within the jurisdiction of such court may have been transferred to any of the Union Territories.

12. Advocate General of Jammu and Kashmir will be appointed by the Lieutenant Governor. Ladakh will not have an Advocate General.

13. It will repeal 164 State Laws and makes 108 Central Laws applicable to both the Union Territories by omitting the words “except the State of Jammu and Kashmir” from the provisions of those Acts.

14. Ranbir Penal Code, the J&K Evidence Act, the Civil Procedure Code and Criminal Procedure Code of the State of Jammu and Kashmir will be repealed.

15. Jammu and Kashmir will have 5 Lok Sabha and 4 Rajya Sabha Seats. Ladakh will have only 1 Lok Sabha seats.

16. The official language will be Hindi and one more language which will be decided by Legislative Assembly of Jammu and Kashmir.

17. There will be the establishment of the Consolidated Fund, Contingency Fund and the Public Account of the Jammu and Kashmir.

Utkarsh Shubham

Faculty of Law, University of Allahabad

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