Recapitulation of the Constitutional position of Jammu and Kashmir
The salient features of the constitutional position of the State of Jammu & Kashmir in relation to the Union, as modified up-to-date, may now be summarised.
(a) Jurisdiction of Parliament. The jurisdiction of Parliament in relation to Jammu & Kashmir shall be confined to the matters enumerated in the Union List, and the Concurrent List,8 subject to certain modifications, while it shall have no jurisdiction as regards most of the matters Recapitulation of enumerated in the Concurrent List. While in relation the Constitutional to the other States, the residuary power of legislation position of Jammu bel0ngs to Parliament, in the case of Jammu and Kashmir, the residuary power shall belong to the Legislature of that State, excepting certain matters, specified in 1969, for which Parliament shall have exclusive power, e.g., prevention of activities relating to cession or secession, or disrupting the sovereignty or integrity of India. The power to legislate with respect to preventive detention in Jammu & Kashmir, under Art. 22(7), shall belong to the Legislature of the State instead of Parliament, so that no law of preventive detention made by Parliament will extend to that State.
By the Constitution (Application to Jammu & Kashmir) Order, 1986, however, Art. 249 has been extended to the State of Jammu & Kashmir, so that it would now be competent to extend the jurisdiction of Parliament to that State, in the national interest (e.g., for the protection of the borders of the State from aggression from Pakistan or China), by passing a resolution in the Council of States [Constitution Order, 129].
(b) Autonomy of the State in certain matters. The plenary power of the Indian Parliament is also curbed in certain other matters, with respect to which Parliament cannot make any law without the consent of the Legislature of the State of Jammu & Kashmir, where that State is to be affected by such legislation, e.g., (i) alteration of the name or territories of the State [Art. 3], (ii) international treaty or agreement affecting the disposition of any part of the territory of the State [Art. 253].
Similar fetters have been imposed upon the executive power of the Union to safeguard the autonomy of the State of Jammu & Kashmir, a privilege which is not enjoyed by the other States of the Union. Thus,
(i) Similarly, no decision affecting the disposition of the State can be made by the Government of India, without the consent of the Government of the State.
(ii) The Union shall have no power to suspend the Constitution of the State on the ground of failure to comply with the directions given by the Union under Art. 365.
(iii) Arts. 356-357 relating to suspension of constitutional machinery have been extended to Jammu & Kashmir by the Amendment Order of 1964. But “failure” would mean failure of the constitutional machinery as set up by the Constitution of Jammu & Kashmir and not Part VI of the Constitution of India. •
In Jammu & Kashmir two types of Proclamations are made: (a) the “Governor’s Rule” under s. 92 of the Constitution ofJammu & Kashmir, and (b) the “Presidents Rule” under Art. 356 as in the case of other States.
(a) The first occasion when President’s Rule was imposed in Jammu & Kashmir was on 7-9-1986. It followed Governor’s Rule which expired on 6-9-1986. The Proclamation was revoked on 6-11-1986 when Farooq Abdullah formed a ministry.
(b) Governor’s Rule was imposed on 27-3-1977 for the first time and later on 19-1-1990.
Since 19-7-1990 the State had continuously been under President’s Rule until 9-10-1996 when a popular Government, under the leadership of Farooq Abdullah, was formed on the basis of an election held in September, 1996 [Statesman, 10-10-1996],
Governor’s Rule is provided by the State Constitution. In exercise of this power the Governor has the power, with the concurrence of the President, to assume to himself all or any of the functions of the Government of the State, except those of the High Court.
(iv) The Union shall have no power to make a Proclamation of Financial Emergency with respect to the State ofJammu & Kashmir under Art. 360.
In other words, the federal relationship between the Union and the State ofJammu & Kashmir respects ‘State rights’ more than in the case of the other States of the Union.
(c) Fundamental Rights and the Directive Principles. The provisions of Part IV of the Constitution of India relating to the Directive Principles of State Policy do not apply to the State of Jammu & Kashmir. The provisions of Art. 19 are subject to special restrictions for a period of 25 years. Special rights as regards employment, acquisition of property and settlement have been conferred on ‘permanent residents’ of the State, by inserting a new Art. 35A. Articles 19(l)(f) and 31(2) have not been omitted, so that the fundamental right to property is still guaranteed in this State.
(d) Separate Constitution for the State. While the Constitution for any of the other States of the Union of India is laid down in Part VI of the Constitution of India, the State of Jammu & Kashmir has its own Constitution (made by a separate Constituent Assembly and promulgated in 1957).
(e) Procedure for Amendment of State Constitution. As already stated, the provisions of Art. 368 of the Constitution of India are not applicable for the amendment of the State Constitution of Jammu & Kashmir. While an Act of Parliament is required for the amendment of any of the provisions of the Constitution of India, the provisions of the State Constitution of Jammu & Kashmir (excepting those relating to the relationship of the State with the Union of India) may be amended by an Act of the Legislative Assembly of the State, passed by a majority of not less than two-thirds of its membership; but if such amendment seeks to affects the Governor or the Election Commission, it shall have no effects unless the law is reserved for the consideration of the President and receives his assent.
It is also to be noted that no amendment of the Constitution of India shall extend to Jammu & Kashmir unless it is extended by an Order of the President under Art. 370(1).
(f) No alteration of the area or boundaries of this State can be made by Parliament without the consent of the Legislature of the State of Jammu & Kashmir.
(g) Other Jurisdictions. By amendments of the Constitution Order, the jurisdictions of the Comptroller and Auditor-General, of the Election Commission, and the Special Leave Jurisdiction of the Supreme Court have been extended to the State of Jammu & Kashmir.
Power to put an end to Art. 370. Clause (3) of Art. 370 provides—
“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”
Recently, a plea has been raised by the Bharatiya Janata Party that the President should declare that Art. 370 shall cease to operate, so that the special status of J & K would be abolished and that State would be brought to the same level as that of the other States, to be governed by all the provisions of Part VI of the Constitution.
Since the Constituent Assembly, referred to in the Proviso to Cl. (3) [above] no longer exists, the President’s power appears to be unfettered now. The arguments of the B J.P. to abolish the special status are—
(a) The makers of the Constitution of India intended that the special status was granted to J. & K. only as a temporary measure, and that is why Art. 370 was included in Part XXI under the label—‘Temporary, Transitional and Special Provisions’, and Cl. (3) was appended to Art. 370.
(b) The people of J. & K. have abused the special status and entered into a conspiracy with the Government of Pakistan and the leaders of ‘Pakistan-occupied Kashmir’ to invite a veiled invasion from Pakistan.
The Congress Government has so far resisted the demand of the BJ.P. on political grounds. With the coming of the NDA, lead by a majority of 282 seats in the lower house in the recent General Election, 2014, it is to be seen how the BJ.P. reacts to Art. 370. Presently, the BJ.P. has a coalition government, with the Jammu and Kashmir Peoples Democratic Party (PDP) in Jammu and Kashmir.