Various developments occurred in Jammu and Kashmir State subsequent to its accession to India and made its constitution position materially different from that of the other Indian States. The State forms part of the territory of the Indian Union as is Mentioned in Article 1 but its constitution does not form a part of the Indian Constitution of India. It has its own constitution enacted by its own Constituent Assembly and as it was framed by the representative of its people, it was tested at every stage to ensure its suitability to the people concerned. The State is an autonomous unit in the Indian Union and thus unique, but because of its accession to India and surrender of some powers consequent upon accession , some provisions of the Indian Constitution has been made applicable to the state in consultation with the State Government.
The Jammu and Kashmir state has ever been governed by two sets of constitutional provisions, the first envisaged by the constitution of India state. The position of the state, in the Indian constitutional organization has been determined by the constitution of India and the instruments of the State Government have been devised by the constitution of the state.
The division of powers between the Union and the State of Jammu and Kashmir is determined within the scope of Article 370 of the Constitution of India as amended by the various Constitution (Application to Jammu and Kashmir) Orders, promulgated by the President of India from time to time. In its original form Article 370, did not provide for the application of the provisions of the Constitution of India, with regard to the state-center relations, including the Seventh Schedule. Accordingly the powers of the Parliament to legislate were limited to:
- Matters in the Union List and the Concurrent List, which were enumerated in the Instrument of Accession;
- Matters, in the Union List and the Concurrent List, which in consultation with the State Government were declared by the President to correspond to the matter specified in the Instrument of Accession;
- Such other matters in the Union List and the Concurrent List, which were specified by the President of India with the concurrence of the State Government.
The scheme of the division of powers embodied in Article 370 was drastically modified in 1954, when the President of India promulgated the Constitution (Application to Jammu and Kashmir) Order of 1954, and Part XI of the Constitution of India together with Seventh Schedule was made applicable to the State. The provisions of Part XI of the Constitution of India deal with the legislative and administrative relations of the State. The application of Part XI of the Constitution of India brought the division of powers between the Union and Jammu and Kashmir in line with the federal division of powers envisaged by the Constitution of India. The subsequent Presidential Orders further defined the areas of authority of the State and the Union, pruning and modifying the reservations imposed upon the application of the Part XI of the Constitution of India to the State, which included the application of division of financial powers between the Union and the State, Part XI enumerated. Most to the reservations and exceptions saved certain subjects in the Union List and the Concurrent List from the jurisdiction of the Union and reserved them for the State and secured the State Legislative, administrative and financial powers, which in case of the other Indian States were vested with the Union Government. Many of the reservations and exceptions, including those, which vest the residuary powers in the State, are still operative. Thus the powers exercised by the Union in relation to the State, pertain to subjects in the Union List and the Concurrent List, with regard to which the provisions of the Seventh Schedule are made applicable to the State. All the residuary powers are vested with the State. It is noteworthy that the most damaging application, one that impairs the efficacy of the J&K Constitution, is the Constitution (Application to J&K) Second Amendment Order, 1975. “The order debarred the state legislature from amending the state Constitution on critical matters like appointing the governor, composition of the state legislature (both Upper and Lower House) and the election commission.”
Out of the total 395 Articles of the Jammu and Kashmir Constitution , 260 have been overridden by the Articles of the Indian Constitution. The remaining 135 are identical to the Indian Constitution. This was rightly summarised by the former Home Minister and Interim Prime Minister Gulzari Lal Nanda who referred to the Article 370 as a shell. “Whether you keep it or not, it has been completely emptied of its contents. Nothing has been left in it.”
THE DILUTION OF ARTICLE 370
♦ In its original form, Article 370 specified that except for defence, foreign affairs, finance and communications, the Indian Parliament needs the state government’s concurrence for applying all other laws. But now all the provisions that gave J&K its autonomous status have been withdrawn
♦ J&K, which has its own Constitution, is debarred from making any amendments to it
♦ The J&K Constitution provided for a Sadar-i-Riyasat (head of state), elected by the members of the state legislature and a prime minister. Now replaced by the governor and chief minister
♦ J&K had a national flag, the word ‘national’ has now been deleted, reducing it to a government flag
♦ Under the original Article 370, the people of J&K were not citizens of India; now they are, Indian citizens needed a permit to visit J&K and goods from India had to pass through a Customs barrier. The restrictions no longer exist
♦ The people of J&K were not obliged to uphold the “integrity and sovereignty of India”. Now, it is obligatory
♦ Parliament’s power of legislation with regard to J&K was limited to the items on the Union list. Now, the Union can legislate not only on state list but others not mentioned in the Union list and the Concurrent list
♦ The Supreme Court’s original jurisdiction on J&K was restricted only to Article 131, dealing with disputes between the Union and the states. Now, the SC can not only review laws made by the state legislature but also has powers of judicial review of the administrative action undertaken by the state government
Shri Jefferson, the great American Statesman and player of great-part in the making of American Constitution expressed thus. -‘We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.’
Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.
Thus till there is no unanimity between the key players on Kashmir i.e. India , Pakistan and the people of Jammu and Kashmir there can be no change in the status of this article. Till the time a political solution can be peacefully found this Article shall and will be able to serve its purpose by remaining in our Statute Books.