Our Indian Constitution is a remarkable and an outstanding Constitution with several distinguishing features. Indian Constitution stretches its hands all over India to protect its citizens without any discrimination based on sex, race, religion or language. Indian Constitution is a unique Constitution. Indian Constitution has in itself one more Constitution. The State of Jammu and Kashmir holds a peculiar position under the Constitution.
Jammu and Kashmir forms the ‘territory of India’ as defined in Article 1 of the Constitution, being the fifteenth State included the First Schedule of the Constitution, as it stands amended. In the original Constitution enacted was specified as a ‘Part B’ State. The States Reconciliation Act, 1956, abolished the category ‘Part B’ states and the Constitution Act , 1956,1 which implemented the changes that the former act intended to do, it included the state of Jammu & Kashmir in the lists of ‘ States’ of the Union of India, all of which are now included into one category. Nevertheless, the state of Jammu and Kashmir enjoys special Constitutional position under the Constitution of India originally i.e. Article 370 and has been maintained, so that all the provisions of the Constitution of India relating to the ‘States’ in the First Schedule is not applicable to the State of Jammu and Kashmir even though it is one of the states that is enlisted in the First Schedule of the Constitution.
HISTORY OF THE INTEGRATION AND ORIGINAL POSITION OF THE STATE IN THE INDIAN CONSTITUTION:
It is vital to understand why the state Jammu and Kashmir, being included in the First Schedule of the Constitution, should yet be given a special treatment, to look at the retrospective development of the Constitutional relationship between Jammu and Kashmir and India becomes obligatory. During the British governance, Jammu and Kashmir was an Indian State ruled by a hereditary Maharaja. On 26th October 1947, when was attacked by Azad Kashmir Forces with the support of Pakistan, the Maharaja Sri Hari Singh was obliged to seek the help of the India, after executing an Instrument of Accession same to that executed by the rulers of other Indian States. Accession of Dominion of India acquired jurisdiction over State with respect to the subject of Defence, Communications, and External Affairs, and like other states of India which survived as political units at the time of making of the India Constitution, the State of Jammu and Kashmir was included as a Part B State in the First Schedule of the Constitution as it promulgated in 1950. Regardless of the fact, the State of Jammu and Kashmir was earlier included in the Part B of the Constitution which was applicable to Part B States were not extended to the State of Jammu and Kashmir. This peculiar position of the State was due to the fact that having regard to the circumstances kept in mind which the State acceded to India, the Government of India had declared that it was people of the State of Jammu and Kashmir, acting through their Constitutional Assembly, who were to finally decide the Constitution of the State and the jurisdiction of the Union of India. The substance of provision embodied in Article 370 of the Constitution of India accordingly, to be in the nature of interim arrangement.
Government of India Act liberty was seriously misunderstood and misinterpreted in the interested quarters, overlooking the legal implications of the Accession of State to India, in fact it is indeed necessary to look in detail and explain the political turmoil of the political events that surrounded the Accession. The very first to be looked upon is that the Instrument of Accession signed by Maharaja Hari Singh on October 1947, which was similarly executed by the other Indian States which was followed by the Indian Independence Act, 1947. The execution had a legal consequence, the Ruler of Jammu and Kashmir cannot, be in any way different from the other Indian States. Sections 5-6 of the Government of India Act, 1935 read with s. 7(1) (b) of the Indian Independence Act, 1947 may be recalled owing to the lapse of paramountcy under s.7 (1) (b) of the Indian Independence Act, Indian States regained their original Sovereignty powers and it regained the absolute position which they enjoyed prior to the assumption of suzerainty by the British Raj. The Rulers of the Indian States thus became unquestionably competent to accede to either of the newly created Dominion of India and Pakistan and those which acceded to India. Therefore, no doubt that by the act of Accession of the State of Jammu and Kashmir became legally and irrevocably an integral part of territory of India and that the Government of India was entitles to exercise jurisdiction over the State with respect to those matters to which Instruments of Accession extended.
POSITION TO THE STATE
At the time Indian Constitution was framed in 1949, the dual attitude of Indian Government gave this position to this State within the boundary walls of the Constitution. Article 1 of the Indian Constitution clearly declares that the State of Jammu and Kashmir is a part of territory of India.2 This doesn’t anyway make that all provisions of the Indian Constitution applies to the State of Jammu and Kashmir, the subjects applicable to the State is something that the Constitutional Assembly of the State needs to approve. There are just two Articles in the lengthiest Constitution of the world that would apply to the State are – Article 1 and 370.
STATE MADE CONSTITUTION
The Constitution of the State declared the State of Jammu and Kashmir to be an integral part of territory of India. The executive and legislative power of the state will extend to all matters except those with respect to which Parliament has the power to make laws for the state under the provision of the Constitution. Every citizen of India can be permanent resident of the State, if on May 14, 1954, he was a State subject of Class I or Class II, or, having lawfully acquired immoveable property in the state that he has been ordinarily resident of the State for not less than 10 years prior to the date. Those migrated to Pakistan can return to the state under a permit of resettlement, he shall be treated as a permanent resident of the State.
There are so many differences between other states of India and Jammu and Kashmir. The head of the Government in other states are the Governors appointed by the President whereas in the State of Jammu and Kashmir he is called as Sardar-i-Riyasat and he is appointed by the State Legislative Assembly. The Legislature of the State consists of Sardar-i-Riyasat (Governor) and two Houses, Legislative Assembly and Legislative Council. The High Court of the State consists of 14 Judges including 9 Permanent Judges and 5 Additional Judges, every Judge of the High Court will be appointed by the President after consulting Chief Justice and the Governor, in case of appointment Judges other than the Chief Justice.
There exists Public Service Commission for the State, it will have a Chairman appointed by the Governor. The State Constitution can be amended by a bill in the Legislative Assembly.
INDIRA-ABDULLAH AGREEMENT, 1975
The adoption of a separate State Constitution, the pro-Pakistan elements in Jammu and Kashmir continued their agitation for the holding of plebiscite to finally which nation the State should accede to India or Pakistan. Sheikh Abdullah got himself involved in anti-national activates against India, criticising the policy of the Indian Government towards the State, as a result he had to be placed under preventive detention in 1955. He was released on 1964 on the profession of a changed attitude but again he went wrong, and hence he was again detained in 1965 under the D.I.R., he was externed from the State in 1971. There can serious negotiations between Government of India and ‘Plebiscite Front (a pro-Pakistan party). This led to the announcement of an agreement on 24 February 1975.
Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions. Under Article 370 the Indian Parliament cannot do anything about the borders neither it can increase nor it can decrease the borders of the State. According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu and Kashmir. Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government. The State of Jammu and Kashmir enjoys special status under 370 of the Constitution of India.