International Journal of Academic Research ISSN: 2348-7666 Vol.1 Issue-3(1), September, 2014

Dr. Pradeepta kishore Sahoo, Principal, Lawcollege, Law college Road, Bengenakhowa, Dist.-golaghat,

Durbar had sold to the British government was transferred by the The state of Jammu and Kashmir came latter to the Dogra ruler who acquired it into being as a single political entity in after stiff local residence. The 1846 under what is called the treaty of boundaries of the new state were further Amritsar. The British government vide extended by its rulers through a number this treaty concluded on 16th may of that of military expeditions, of course, with year, transferred and made over, the concurrence of the British “forever in independent possession to government, Ranbir Singh son of Gulab Maharaja Gulab Singh and the heir male Singh added Gilgit in life time of his of his body all hilly or mountainous father to his dominion. He subdued country with its dependencies situated to Yasin in 1863 and Dard valley in 1865. the eastward of the river Indus and Later during the rule of Maharaja westward of the river Ravi.” Pratap Singh, grandson of Gulab Singh , In consideration of this his forces defeated the rulers of chitral transfer Gulab Singh paid to the British in 1891and of Hunza and Nagar in 1895. government the sum of seventy-five lacs Who accepted the suzerainty of the of rupees while Jammu and Ladakh were Dogra Durbar. already being ruled by Gulab Singh, the While the Treaty transferred valley of Kashmir which the Lahore the state to Gulab Singh “ in

  International Journal of Academic Research ISSN: 2348-7666 Vol.1 Issue-3(1), September, 2014 independent possession” it instrument and believed that he had unambiguously specified British even a right to withdraw it. After his supremacy over his rule. According to abdication in 1949 the state Prime Article -4 of the Treaty of Amritsar Minister Sheikh Abdullah also treated maharaja did not change the limit of his these terms as sacrosanct. But the territories without concurrence of the government of seemed to take a British government. He under took to different view. Moving Article-306A refer to the arbitration of the British (present Article-370) which gave a government any dispute in question that special status to the state. may arise between himself and the N.Gopalaswamy Ayyangar, a member of government of Lahore or any other the Drafting committee told the neighboring state and to abide by the constituent Assembly that, “Instrument decision of the British government. of Accession will be a thing of the past in the new constitution.” He said “In case According to Article-6, of practically all states other than the Maharaja engaged for himself and heirs state of Jammu and Kashmir their to join with the whole of his military constitutions also have been embodied in force, the British troops when employed the constitution for the whole of India.” within the hills or in the territories Describing the chequered history of the adjoining his possessions. He further state he observed, “It is the hope of engaged in Article-7 never to take or everybody here that in due course even retain in his service by British subject, Jammu and Kashmir will become ripe not the subject of any European or for the same sort of integration as has American state with the consent of the taken place in the case of other states. British government. Under Article-9 the British government undertook “the On the question of residuary responsibility of protecting the sovereignty, the union powers committee territories of Maharaja Gulab Singh of the constituent assembly had vested it from external enemies. with the centre only in the case of former British Indian provinces while in Finally and more specifically the case of princely states it vested with according to Article-10 Maharaja Gulab them. While submitting the report of the Singh acknowledged the supremacy of committee Gopalaswamy Ayyangar the British Government and will in expressed the hope on 21st August 1947, token of such supremacy present when the status of many states had yet annually to British Government , one to be settled that, “in due course the horse, twelve perfect shawl goats and Indian states will approximate to three pairs of Kashmiri shawls. provinces and the distinctions that now exist will find themselves removed by The Maharaja of the state common consent.” zealously guarded the terms of the

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Likewise, it was hoped that the country as its Article-370. The distinction between Jammu and passions aroused for and against it were Kashmir and other states would in due the major cause of disrupting the course be removed. So a “transitional emotional unity of the state and the and temporary” provision of Article-370 process of Indian federalization therein. was incorporated in the constitution of This highly emotive issue of Kashmir India. To quote Ayyanger again, “when politics figured as late as in the the constituent Assembly of the state Assembly Election campain of 1977 has met and taken its decision both on when the National Conference leader the constitution of the state and on the Abdullah threatened secession of the range of federal jurisdiction over the state from India if there was any move state. The president may on the to abrogate the controversial Article. recommendation of that constituent Indiscreet references to its abrogation by Assembly, issue an order that Article- some erstwhile Jana Sangh leader 370 shall cease to be operative or shall despite later disclaimers by some senior be operative only subject to such Janata leaders are generally believed to exceptions and modifications as may be have provoked the electorate in the specified by him. valley to swing in favour of the conference so massively. Article-370 limits the power of parliament to make laws for Jammu and At the time of the opinion survey, Kashmir to such of the matters as are for the present study (1975-76) an over enumerated in the union List and whelming number of Muslim concurrent list, which the president in respondents as large as 95% favoured a consultation with the government of the special status for the state under Article- state, declares to be corresponding with 370. The major reason cited by most of the matters specified in the Instrument them that to support their behalf was to of accession governing the accession of honour the pledge given by the Indian the state to the union of India, and to leaders to the people of the state. The such other matters is the said list as the opinion in the state gradually tended to president may with the concurrence of reconcile to the constitution of the the government of the state specify. The Article, but at the time of the survey it article in no way affects the state’s was still opposed by as many as 57% of status as a unit of the Republic of India. the Hindu respondents. Finally when For Article-1 of the constitution which the Janata government at the centre of defines the territory of India was made which the erstwhile Jana Sangh which applicable to the state under Article-370 had spearheaded the campaign against and included its territory. the Article was a constituent part supported the continuation of the No provision of the Indian Article, the Hindu opposition to it constitution has been a subject of such became muted. heated controversy, within the state and

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In the past, provisions of the (5) Provisions with regard to Indian constitution and laws passed by citizenship, Fundamental rights and parliament relating to matters specified of state policy, in the Instrument of accession were envisaged by the constitution of applied to the state in consultation with India would be uniformly applicable the state government and relating to to this state. And other matters with its concurrence. In (6) The operation of administrative fact original objective of Article-370 was control of the state armies would be stated to enable application of Indian taken over by the government of constitution to the state in the light of India. its constitution and the sphere of union jurisdiction over it determined by the When the state constituent assembly that was to was promulgated on 26th January 1950, be setup. the president simultaneously issued an order under article-370 with the The Article incorporated the consultation of the government of decision taken at a meeting between the Jammu and Kashmir, which defined the representatives of the state government jurisdiction of the union parliament and and the government of India in May the provisions of the constitution 1949. The broad particulars agreed upon applicable to the state. While parts of the by the two sides stipulated the constitution relating to subjects like following:-- Defence, external Affairs, (1) The constitution of the state would Communications and Foreign trade were be framed by the constituent fully applied to the state, other subjects assembly representing all the people like commerce, Audit, Judiciary, election of the state. and Finance were applied with modifications. Provisions of the (2) The future of the dynastic rule constitution regarding Fundamental would be determined by state Rights and Directive Principles were constituent Assembly. specifically not applied to the state. (3) Division of powers between the The constituent Assembly of government of India and the state the state was setup under a government would be covered under proclamation issued by Karan Singh who the provisions of the instrument of was acting as the Regent after the accession. abdication of Maharaja Hari Singh on 1st (4) Constituent Assembly of the state May 1951, he ordered:--“The constituent would be empowered to determine Assembly consisting of representatives other powers to be transferred to of the people, elected on the basis of government of India. adult franchise shall be constituted forthwith for the purpose of framing

  International Journal of Academic Research ISSN: 2348-7666 Vol.1 Issue-3(1), September, 2014 constitution of Jammu And Kashmir (2) Provisions of the constitution of State.” India regarding fundamental rights were extended to the state subject to :- such restrictions as the state After the governmental change legislature deemed necessary. over in the state its Assembly resumed Besides no law with respect to the task of constitution making on the preventive detention made by the basis of its interim recommendations, legislature of the state before or the president of India proclaimed on 14th after the commencement of the May 1954 the constitution (Application constitution (Application to Jammu to Jammu and Kashmir) order 1954 and Kashmir) order shall get which defined the jurisdiction of the nullified on the ground that it was Indian constitution over the state under inconsistent with the constitutional article-370. The order broadly provisions regarding fundamental implemented the provisions of the Delhi rights for a period of five years. Agreement and inter alia included the (3) The constitution of India with following: respect to the emergency powers of (1) Provisions of the constitution of the president of India were made India regarding citizenship were applicable to the state with the extended to the state subject to the exception that no proclamation of condition that the permanent Emergency be made on the ground residents of the state who had of internal disturbances or danger migrated to the territory now under and have effect in relation to the the occupation of Pakistan on return J&K state without the concurrence to state for settlement were reserved of the state. the right to acquire Indian (4) The right to make special provision citizenship on “permanent return” with regard to the agrarian and permit issued to them by and under economic policy in respect of socially the authority of law made by the backward classes were reserved for legislature of the state. The state the state legislature. The provisions legislature also reserved the right to of the Indian constitution pertaining define the “permanent residents” to its territories are applied to the and confer on them special rights state with the exception that power and privileges or impose restrictions of parliament to increase or diminish on any other persons in regard to the area of the state or to alter its implementation and settlement in name were restricted to the extent the state and right to scholarship that the consent of the state was and other forms of aids provided by necessary before doing so. the state government. (5) The provision of the constitution of India regarding official languages

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were extended to the state for the distinct advance in the existing position” following purposes :-- and as a step advanced towards “determination of the relationship of the (a) Official language of the state with the central government.” Its Union. president Pandit Mauli Chander Sharma (b) Official language for criticized the order for conceding to the communication between the state the right “to discriminate against state government and other the citizens of the rest of India in the states or between the state matter of entry, residence, employment or union. and acquisition of immovable property in (c) Language of the proceedings the state.” He also took exception to the of the Supreme Court. right given to the state legislature to permit and regularize the entry of those (6) The provisions of the constitution of who had left the state and gone over to India in its application to the state Pakistan. included the following exceptions: (a). The representatives of the state The newly set-up democratic for the House of the people were to socialist party, a break away group of be appointed by the president on the Jammu National conference which later recommendation of the state merged with the Praja socialist party, legislature unlike other states where condemned the presidential order for they were elected.(b). Power of “restrictions on civil liberties, limited parliament to extend the appellate jurisdiction of Supreme court, elections jurisdiction of the Supreme Court of the states representatives to was limited to the extent it was parliament as well as of Sadar-i-Riyasat requested by the state legislature, through majority decision of the the Supreme Court was not vested Kashmir constituent assembly and not with power to issue directions, by the people’s direct vote. In a detailed th orders and writs for purposes not note on the subject released on 25 pertaining to the enforcement of the September1956, chairman of the state fundamental rights.(c). The unit of the PSP Om Prakash Saraf jurisdiction of the auditor and observed:---“the presidential order does comptroller general and election neither go beyond nor falls short of the commissioner were not extended to Delhi Agreement in any significant the state. sense. For this alone Bakshi Ghulam Mohammad deserves neither more credit The presidential order of 1954 was not more blame than did his generally received with a sense of relief predecessor.” He added, “ The so called in parliament and political circles of autonomy does not offer any right to the India. Even Jana Sangh which had people of Kashmir but simply adds to the campaigned against the special status of repressive power of the state the state welcomed it for making “a government and indirectly to the

  International Journal of Academic Research ISSN: 2348-7666 Vol.1 Issue-3(1), September, 2014 executive of the union government, PSP constitution which appears from this leader opposed denial of basic freedoms article is that the constitution was to the autonomous union institutions framed for the entire union of India but over the state. the provisions of the constitution should not apply to the territories of the state of The order provoked a strong Jammu and Kashmir until and unless protest from Pakistan who challenged the president made an order that they India’s right to issue it. Though shall apply. presidential order of 1954 did not radically alter centre state constitutional The effect of the article was to relations as envisaged in Delhi give jurisdiction to the union parliament Agreement, it was a forerunner of the to make laws for the state on matters process of further constitutional specified either in the instrument of integration of the state with the union. accession or by later additions made Twenty-eight constitution (Application with the concurrence of the state to Jammu and Kashmir) orders were government. It is no way altered the issued by the president since 1954 up to basis of relationship between the state 1977 to amend his order of 1954, of and the union government and left the course on the recommendation of the state to be governed by its own laws and state assembly. Each order extended constitution in the residuary field. This more provisions of the Indian article was inserted as a temporary constitution to the state. Parliament also provision until the constituent assembly extended 262 central laws to the state up of the state met and decided the political to 1973 in concurrence with the state future of the state. The president was government. All these measures for empowered by the article itself to decide application of the Indian constitution at the appropriate moment whether the and central laws to the state were hailed article should be abrogated or be by the central and the state governments retained subject to exceptions and as steps towards further integration of modification. Now the constituent the state with the country. Assembly of the state has decided that Jammu and Kashmir is and shall be an : integral part of the “Union of India”. and also law pass by parliament not This article was included in the applicable to J & K fully. constitution as a special provision in Temporary provisions with respect to view to the problems arising in respect the state of Jammu and Kashmir: of the state of Jammu and Kashmir and Notwithstanding anything in this also the fact that government of India constitution:--1st (a). The provision of had given their assurance to the people article-238 shall not apply in relation to of the state that their political future the state of Jammu and Kashmir , (b) would be finally determined by The power of parliament to make laws themselves. The policy of the

  International Journal of Academic Research ISSN: 2348-7666 Vol.1 Issue-3(1), September, 2014 for the said state shall be limited to- If the concurrence of the government of those matters in the union list and the the state referred to in Paragraph (II) of concurrent list which in consultation sub-clause (b) of caluse-1 or in the with the government of the state, are second proviso to sub-clause (d) of that declared by the president to correspond clause be given before the Constituent to matters specified in the Instrument of Assembly for the purpose of framing the Accession governing the accession of the constitution of the state is convened, it state to the Dominion of India as the shall be placed before such Assembly for matters with respect to which the such decision as it may take thereon. Dominion legislature may make laws for Notwithstanding anything in the that state and; such other matters in foregoing provisions of this article, the the said lists as, with the concurrence of president may, by public notification, the government of the state, the declare that this article shall cease to be president may by order specify. operative or shall be operative only with such exceptions and modifications and For the purposes of this article, form such date as he may specify: the government of the state means the person for the time being recognized by Provided that the recommendation of the president as the Maharaja of Jammu the constituent Assembly of the state and Kashmir acting on the advice of the referred to in clause (2) shall be council of Ministers for the time being in necessary before the president issues office under the Maharaja’s such a notification. proclamation dated the fifth day of (1). In exercise of the powers conferred March,1948. The provisions of article-1 by this article the president, on the and of this article shall apply in relation recommendation of the constituent to the state. Such of the other provisions assembly of the state of Jammu and of this constitution shall apply in Kashmir, declared that as from the 17th relation to that state subject to such day of November, 1952, the said article- exceptions and modifications as the 370 shall be operative with the president may by order specify: modification that for the Explanation in Provided that no such order which clause(1) thereof the following relates to the matters specified in the explanation is substituted namely: For Instrument of Accession of the state the purpose of this article the referred to in Paragraph (I) of sub-clause government of the state means the (b) shall be issued except in consultation person for the time being recognized by with the government of the state; the president on the recommendation of Provided further that no such order the legislative Assembly of the state as which relates to matters other than the Sadar-i-Rayasat or governor of those referred to in the last preceding Jammu and Kashmir, acting on the proviso shall be issued except with the advice of the council of Ministers of the concurrence of that government. state for the time being in office.

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(2). The constitution (Application to 2,3,5 to 10, 12 Jammu and Kashmir) order 1954 (C.O.- to15,17,20,21,27,28,29,31,32,37,38,4 48) as amended from time to time. 0,&44). (e) A proclamation of Emergency under Article-352(1) cannot have any effect The president acting under in relation to the state unless it has Article-370 promulgated the constitution been made at the request or with the (Application to Jammu and Kashmir) concurrence of the state order, 1950. This order was replaced by government. the constitution (Application to Jammu and Kashmir) order, 1954. This order (f) The provision for imposing the has been amended and modified by the president’s rule under Article-356 president from time to time, regulating applies to the state. the constitutional status of the state. As (g) No proclamation can be made under a result, several provision of the Indian article-360 with respect to the state. constitution has been extended to the state of Jammu and Kashmir. (h) The executive power of the union extends to the state, in respect to The constitutional position of the matters with respect to which state under the constitution (Application parliament has power to make laws. to Jammu and Kashmir) order, 1954 The state shall exercise its executive may be stated as follows: power so as to ensure compliance (a) The state of Jammu and Kashmir with the laws made by parliament shall continue to be governed under and as not to impede or prejudice the the constitution of the state which exercise of the executive power of came into force on January 26th, the union if required. 1957. (i) Provisions relating to the freedom of (b) The High court of the state shall trade, commerce and intercourse have all powers and jurisdiction as services and citizenship apply to the enjoyed by the other High courts in state. India except that it cannot issue a (j) Provisions relating to elections apply writ for “any other purpose”. to the state. The election (c) The jurisdiction of the Supreme commission has jurisdiction over Court extends to that state (except elections held in the state under its Article-135 and 139). constitution. (d) The parliament can legislate for the (k) Provisions of the constitution state with respect to all Entries in relating to official Language apply to the union list (Excluding – the stat e. 8,9,34,60,79,&97) and all Entry in (l) The Directive principles of state the concurrent List(except—Entries- policy do not apply to the state.

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(m) An amendment of the constitution working of the constitution for the past enacted under Article-368 shall not 65 years has shown that it is an excellent apply to state until applied by a piece of draftsmanship which has presidential order made under enabled India to steer its way clear of all Article-370(1). The Fundamental obstacles and hindrances which it had to Rights apply to the state with slight face during the period of independence. modifications

Constitutional relations of The Hindustan times Paper 21st Jammu And Kashmir State with the April1997 centre have been a good measure for the success of the process of India J & K constituent Assembly Debates federalization. The constitutional status vol-4 of the state was almost similar to that of The Hindu,Madras,17th July 1964 544 princely states that acceded to the Indian union after independence of the The Hindustan Times, 8 country in 1947. But political July 1954. compulsions created divergent Kashmir Affairs Magazine 9th expectations about the future of this August 1959 status among people belonging to White paper of Indian State part –XI different regions and communities of the state. The framers of the Indian N.V.Paranjapee –Constitutional constitution through their zeal and History of India untiring efforts worked out a constitution of India comprising 395 Articles and Nine Schedules. The

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