The State of J&K has been in turmoil due to the government's decision to issue identity cards to people from West Pakistan [mostly hindus and sikhs] who have migrated to India after partition. The separatists have accused the government of trying to change the demography of the state by increasing the number of non kashmiri residents. However there is no basis to this accusation. The West Pakistani migrants have been identity-less for three generations. They have no quotas in jobs or education, they can’t participate in local body elections or state elections. They also can’t stand for these elections or buy land in the state as the complex state laws prohibit this.
Therefore the government has done the right thing in issuing identity cards to these members.
To understand why Jammu & Kashmir, being a State included in the
First Schedule of the Constitution of India, should yet be accorded a
separate treatment, a retrospect of the development of the constitutional
relationship of the State with India becomes necessary.
Under the British regime, Jammu & Kashmir was an Indian State ruled by a hereditary Maharaja.
On the 26th of October,
Jammu and 1947, when the State was attacked by Azad Kashmir
Forces with the support of Pakistan, the Maharaja (Sir
Hart Singh) was obliged to seek the help of India,
after executing an Instrument of Accession similar to that executed by the
Rulers of other Indian States.
By the Accession the Dominion of lndia
acquired jurisdiction over the State with respect to the subjects of Defence,
External Affairs and Communications, and like other Indian States which
survived as political units at the time of the making of the Constitution of
India, the State of Jammu & Kashmir was included as a Part B State in the
First Schedule of the Constitution of India, as it was promulgated in 1950.
But though the State was included as a Part B State, all the provisions of the Constitution applicable to Part B States were not
extended to Jammu & Kashmir.
This peculiar position was due to the fact that having regard to the circumstances in which the State acceded to India,
the Government of India had declared that it was the people of the State of
Jammu & Kashmir, acting through their Constituent Assembly, who were to
finally determine the Constitution of the State and the jurisdiction of the
Union of India.
The applicability of the provisions of the Constitution
regarding this State were, accordingly, to be in the nature of an interim
(This was the substance of the provision embodied In Art. 370
of the Constitution of India.)
Since the liberality of the Government of India has been misunderstood and misinterpreted in interested quarters, overlooking the legaL implications of the
Accession of the State to India, we should pause for a
moment to explain these legal implications lest they be lost sight of in the
turmoil of political events which have clouded the patent fact of the
The first thing to be noted is that the Instrument of Accession
signed by Maharaja Hari Singh on the 26th October. 1947, was in the same
form' as was executed by the Rulers of the numerous other States which had
acceded to India following the enactment of the Indian Independence Act,
The legal consequences of the execution of the Instrument of
Accession by the Ruler of Jammu & Kashmir cannot, accordingly, be in any
way different from those arising from the same fact In the case of the other
It may be reconciled that owing to the lapse of paramountcy
under s. 7(1)(b) of the Indian Independence Act, 1947, the Indian States
regained the position of absolute sovereignty which they had enjoyed prior
to the assumption of suzerainty by the British Crown.
The Rulers of the
Indian States thus became unquestionably competent to accede to either of
the newly created Dominions of India and Pakistan, in exercise of their
The legal basis as well as the form of Accession were the same
In the case of those States which acceded to Pakistan and those which
acceded to India.
There is, therefore, no doubt that by the act of Accession
the State of Jammu & Kashmir became legally and irrevocably a part of the
territory of india and that the Government of India was entitled to exercise
jurisdiction over the State with respect to those matters to which the
Instrument of Accession extended.
If, in spite of this, the Government of
India had given an assurance to the effect that the Accession to the
constitutional relationship between India and the State would be subject to
confirmation by the people of the State, under no circumstances can any
third party take advantage of such extra-legal assurances and claim that the
legal act had not been completed.
When India made her Constitution in 1949, it is natural that this dual
attitude of the Government of India should be reflected in the position offered to the State of Jammu & Kashmir within the framework of that Constitution.
The act of Accession was unequivocally given effect by declaring Jammu & Kashmir a part of the territory of India
the State. [Art. 1].
But the application of the other provisions of
the Constitution of India to Jammu & Kashmir was
placed on a tentative basis, subject to the eventual approval of the
Constituent Assembly of the State.
The Constitution thus provided that the
only Articles of the Constitution which would apply of their own force to
Jammu & Kashmir were--Arts. 1 and 370.
The application of the other Articles was to be determined by the President in consultation with the
Government of the State [Art. 370].
The legislative authority of Parliament
over the State, again, would be confined to those items of the Union and
Concurrent Lists as correspond to matters specified in the Instrument of
The above interim arrangement would continue until the
Constituent Assembly for Jammu & Kashmir made its decision.
then communicate its recommendations to the President, who would either
abrogate Art. 370 or make such modification as might be recommended by
that Constituent Assembly.
In pursuance of the above provisions of the Constitution, the President made the Constitution (Application to Jammu & Kashmir) Order, 1950, in consultation with the
Government of the State of Jammu & Kashmir,
specifying the matters with respect to which the Union Parliament would be
competent to make laws for Jammu & Kashmir, relating to the three subjects
of Defence, Foreign Affairs and Communications with respect to which
Jammu & Kashmir had acceded to India.
Next, there was an Agreement between the Government of India and J&K in the State at Delhi in June, 1952, as to the subjects
over which the Union should have jurisdiction over
the State, pending the decision of the Constituent
Assembly of Jammu & Kashmir.
The Constituent Assembly of Jammu &
Kashmir ratified the Accession to India and also the decision arrived at by
the Delhi Agreement as regards the future relationship of the State with
India, early in 1954.
In pursuance of this, the President, in consultation with
the State Government, made the Constitution (Application to Jammu &
Kashmir), Order, 1954, which came into force on - the 14th of May, 1954.
This Order implemented the Delhi Agreement as ratified by the Constituent
Assembly and also superseded the Order of 1950.
According to this Order,
in short, the jurisdiction of the Union extended to all Union subjects under
the Constitution of India (subject to certain slight alterations) instead of only
the three subjects of Defence, Foreign Affairs and Communications with
respect to which the State had acceded to India in 1947.
This Order, as
amended in 1963, 1964. 1965, 1966. 1972, 1974 and 1986, deals with the
entire constitutional position of the State within the framework of the
Constitution of India, excepting only the internal constitution of the State
Government, which was to be framed by the Constituent Assembly of the
It was declared
by the Government of India that, notwithstanding the Accession of the State
of Jammu & Kashmir to India by the then Ruler, the future Constitution of the State as well as its relationship with India were to
be finally determined by an elected Constituent
Assembly or the State.
With these objects in view, the
people of the State elected a sovereign Constituent Assembly which met for
the first time on October 31, 1951.
The Constitution (Application to Jammu & Kashmir) Order, 1954,
which settled the constitutional relationship of the State of Jammu &
Kashmir, did not disturb the previous assurances as regards the framing of
the internal Constitution of the State by its own people.
Constitution of the other Part B States was laid down in Constitution of India (as promulgated In 1950), the State Constitution of
Jammu & Kashmir was to be framed by the Constituent Assembly of that
In other words, the provisions governing the Executive, Legislature
and Judiciary of the State of Jammu & Kashmir were to be found in the
Constitution drawn up by the people of the State and the corresponding
provisions of the Constitution of India were not applicable to that State.
The first official act of the Constituent Assembly of the State was to put
an end to the hereditary princely rule of the Maharaja.
It was one of the
conditions of the acceptance of the accession by the Government of India
that the Maharaja would introduce popular Government in the State.
pursuance of this understanding immediately after the Accession, the
Maharaja invited Sheikh Mohammad Abdullah, President of the All Jammu
& Kashmir National Conference, to form an Interim Government, and to
carry on the administration of the State.
The interim Government later
changed into a full-fledged Cabinet, with Sheikh Abdullah as the first Prime
The Abdullah Cabinet, however, would not rest content with
anything short of the abdication of the ruling Maharaja Sir Hari Singh. In
June 1949, thus, Maharaja Hari Singh was obliged to abdicate in favour of
his son Yuvaraj Karan Singh.
The Yuvaraj was later elected by the
Constituent Assembly of the State (which came into existence on October
31,1951) as the 'Sadar-i-Riyasar
Thus, came to an end the princely rule in
the State of Jammu & Kashmir and the head of the State was henceforth to
be an elected person.
The Government of India accepted this position by
making a Declaration of the President under Art. 370(3) of the Constitution
(15th November, 1952) to the effect that for the purposes of the Constitution,
'Government' of the State of Jammu & Kashmir shall mean the Sadar-i-Riyasat
of Jammu & Kashmir, acting on the advice of the Council of
Ministers of the State.
Subsequently, however, the name of Sadar-i-Riyasat
has been changed to that of Governor.
We have already seen that in February, 1954, the Constituent
Assembly of Jammu & Kashmir ratified the State's Accession to India, thus
fulfilling the moral assurance given in this behalf by the Government of
Also that this act of the Constituent Assembly was followed up by
the promulgation by the President of India of the Constitution (Application
to Jammu & Kashmir) Order, 1954, placing on a final footing the
applicability of the provisions of the Constitution of India governing the
relationship between the Union and this State.
The making of the State Constitution for the internal governance of the
State was now the only task left to the Constituent Assembly.
As early as
November, 1951, the Constituent Assembly had made the Jammu &
Kashmir Constitution (Amendment) Act, which gave legal recognition to the
transfer of power from the hereditary Maharaja to the popular Government
headed by an elected Sadar-i-Riyasat.
For the making of the permanent
Constitution of the State, the Constituent Assembly set up several
Committees and in October, 1956, the Drafting Committee presented the
Draft Constitution, which after discussion, finally adopted it.
The State of Jammu &
Kashmir thus acquired the distinction of having a separate Constitution for the administration of the State, in place of the provisions of Part VI of the
Constitution of India which govern all the other State of the Union
The more important provisions of the State Constitution of Jammu & Kashmir are as follows:
The Constitution declares the State of Jammu and Kashmir to be "an
integral part of Union of India".
The territory of the State will comprise all the territories, which, on
August I5, 1947, were under the sovereignty or suzerainty of the Ruler of
the State (ie., including the Pakistan-occupied area of Jammu & Kashmir).
This provision is immune from amendment
The executive and legislative power of the State will extend to all
matters except those with respect to which Parliament has powers to make
laws for the State under the provisions of the Constitution of India.
Every person who is, or is deemed to be, a citizen of India shall be a
permanent resident of the State, if on May, 1954, he was a State
subject of Class I or Class II, or, having lawfully acquired Immovable
property in the State, he has been ordinarily resident in the State for not less
than 10 years prior to that date.
Any person who, before the fourteenth day
of May, 1954, was a State subject of Class I or of Class II and who, having
migrated after the first day of March, 1947, to the territory now included in
Pakistan, returns to the State under a permit for resettlement for permanent return Issued by or under the authroity of any law made by
the State Legislature will on such return be a permanent resident of the
The permanent residents will have all rights guaranteed to them
under the Constitution of India
Under the Original Constitution of Jammu & Kashmir, there was a
difference between this State and other States of India as regards the Head of the
Whi1e in the Rest of India, the head of the State Executive was
called 'Governor' and he is appointed by the President, the
Executive head of the State of Jammu & Kashmir was called Sadar-i-Riyasat and
he was to be elected by the State legis1ative Assembly.
This anomaly has,
however, been removed by the Constitution of Jammu & Kashmir (6th
Amendment) Act, 1965, as a result of which the nomenclature has been changed
from Sadar-i-Riyasai to 'Governor' and he is to be 'appointed by the President
under his hand and seal as in other States.
In the result,
there is now no differences on this point, between Jammu & Kashmir and
As in other States, the executive power of the State will be
vested in the Governor and shall be exercised by him with the advice of the
Council of Ministers (except in the matter of appointment of the Chief
Minister and of issuing a Proclamation for introducing 'Governor's
Rule' in case of breakdown of constitutional machinery.
Governor will hold office for a term of five years.
The Council of Ministers,
headed by the Chief Minister, will be collectively responsible to the
The Legislature of the State will consist of the Governor and two
houses, to be known respectively as the Legislative Assembly and the Legislative Council.
The Legislative Assembly will consist of one hundred
members chosen by direct election from territorial constituencies in the
State; and two women members nominated by the Governor.
seats in the Legislative Assembly will remain vacant to be filled by
representatives of people living in Pakistan-occupied areas of the State.
Legislative Council will consist of 36 members.
Eleven members will be
elected by the members of the Legislative Assembly from amongst persons
who are residents of the Province of Kashmir, provided that of the members
so elected at least one shall be a resident of Tehsil Ladakh and at least one a
resident of Tehsil Kargil.
The two outlying areas of the State, Eleven
members will be elected by the members of the Legislative Assembly from
amongst persons who are residents or the Jammu Province.
14 members will be elected by various electorates, such as municipal
councils, and such other local bodies.
The High Court of the State will consist of a Chief Justice and two or
more other Judges. Every Judge of the High Court will be appointed by the
President after consultation with the Chief Justice of India and the Governor
and in the case of appointment of a Judge other than the Chief justice, the
Chief Justice of the High Court.
There will be a Public Service Commission for the State. The
Commission along with its Chairman will be appointed by the Governor.
Every member of the civil service or one holding a civil post will hold
office under the pleasure of the Governor.
The official language of the State will be Urdu, but English will, unless
the Legislature by law otherwise provides, continue to be used for all official
purposes of the State
The State Constitution may be amended by introducing a Bill In the
Legislative Assembly and getting it passed in each House by a majority of
not less than two-thirds of the total membership of that House.
But no Bill or
amendment seeking to make any change in the provisions relating to the
relationship of the State with the Union of India, the extent of executive and
legislative powers of the State or the provisions of the Constitution of India
as applicable in relation to the State shall be Introduced or moved in either
House of the Legislature
(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, subject to certain modifications, while
it shall have no jurisdiction as regards most of the
Recapitulation or matters enumerated in the Concurrent List
While in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of
Jammu & 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 to states on 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 (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 dispensation of the State can be
made by the Government of India, without the consent of the Government
of the State.
(i) 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. relating to suspension of constitutional machinery
have been extended to Jammu & Kashmir by the Amendment Order of
"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 the Constitution of Jammu & 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 19-1-1900.
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 .
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 of Jammu & Kashmir under
In other words, the federal relationship between the Union and the
State of Jammu & 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.
of Art. 9 are subject to Special restrictions for a period of 25 years.
rights as regards employment, acquisition of property and settlement have
been conferred on 'permanent residents' of the State, by inserting new articles.
Articles 19(1)(1) and 31(2) have nol 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
(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 chan two-thirds of its membership;
If such amendment seeks to affect 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).
(1) 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 &
(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.
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 no longer exists, the President's power appears to be unfettered now.
The arguments of the BJP 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 constitution 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.