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Jammu & Kashmir is known to be an integral part of India. However, the state of Jammu & Kashmir is read as an exception in the extent of any statute, including the Indian Penal Code (IPC) which is otherwise applicable to India. Thus Jammu & Kashmir has its own penal code called Ranbir Penal Code (RPC) (Difference between Ranbir Penal Code and Indian Penal Code, 2019). Also, the state of Jammu & Kashmir has its own Constitution, which was adopted on 17 November 1956 and enforced on 26 January 1957 (Constitution of Jammu and Kashmir, 1956, 2019).

So what is the strange position that enables special autonomy to Jammu & Kashmir although the state been a part of India? To know answers to this question, it is pertinent to understand the history of integration of Jammu & Kashmir with India.

Under the British regime, Jammu & Kashmir was an Indian state ruled by Maharaja Hari Singh. On the 26th of October 1947, when the state was attacked by Azad Kashmir Forces with the support of Pakistan, Maharaja Hari Singh was obliged to seek the support of India, after executing an Instrument of Accession similar to that executed by the rulers of other Indian states. (Basu, 2015) By the Accession, the Dominion of India acquired jurisdiction over the state with respect to the subjects of Defence, External Affairs and Communication, and like other Indian states which survived as political units at the time of 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.

Later, the States Reorganisation Act, 1956 abolished the category of Part B states and the Constitution (7th Amendment) Act, 1956 included Jammu & Kashmir in list of the ‘States’ of the Union of India, all of which are now included in a category forming part of the ‘territory of India’ as defined in Article 1 and in First Schedule the of Indian Constitution.

Presently the Constitution of India enforces two Articles over Jammu & Kashmir, i.e. Articles 1 and 370.

Article 1 in the Constitution states that India, that is Bharat, shall be a Union of States. The territory of India shall consist of: the territories of the states, the Union territories and any territory that may be acquired. Further in the First Schedule, the names of the States and the Unions have been described which enlists Jammu & Kashmir as one of the states.

Article 370 of the Indian Constitution is ‘Temporary provisions with respect to the State of Jammu and Kashmir’ which provides autonomous status to the state of Jammu & Kashmir (Article 370, 2019).

Owing to such autonomy enjoyed by Jammu & Kashmir under Article 370 of Indian Constitution, the state has been aloof to the progress made by India which otherwise could have helped resolve many issues of Jammu & Kashmir to a large extent. If we proudly state that Jammu & Kashmir is an integral part of our country then why does it need any special status? Subsequent to the abrogation of Article 370, new avenues will be opened and even people from other parts of India will be able to buy land in Jammu & Kashmir. This will also lead to investment of plants and companies by entrepreneurs and corporates. Business soon will be booming which eventually be helpful in a generation of employment for the local youth, who often are lured into militancy. With the advent of such integration with the rest of India, educational institutes may be set up and quality of imparting education from primary to post-graduate and doctrinal level will be improved. The legislation of India will also be equally binding to Jammu & Kashmir, as that similar to other states in India. Thus it is certain that abrogation of Article 370 will help Jammu & Kashmir in a manifold.

The jurisdiction of Parliament in context to Jammu & Kashmir shall be restrained to the matters enumerated in Union list and the Concurrent list, subject to certain modifications, while it shall have no jurisdiction to most of the matters enumerated in the Concurrent list.

The plenary power of the Parliament is also curbed in certain matters like the Parliament cannot make any law without the consent of the Legislature of the state of Jammu & Kashmir, wherein the state is to be affected by such legislation. For instance, any international treaty or agreement affecting the disposition of any part of the territory of the state cannot be passed by the Parliament.

No doubt, even the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 is not applicable in Jammu & Kashmir (Preeti Motiani, 2018).

The Union government 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 Article 365.

The Union government shall have no power to make a Proclamation of Financial Emergency with respect to the state of Jammu & Kashmir under Article 360.

The provisions of Part IV of the Indian Constitution which deals with Directive Principles of State Policy are not applicable to the state of Jammu & Kashmir. These provisions borrowed from the Irish Constitution though not enforceable by any Court are positive obligations on the State in the legislation of any law. The Directive Principles of State Policy are guidelines to be followed by the State while establishing policies and laws. However, in absentia of such guidelines, it is elusive for any legislation to function within the legit contours of achieving the objectives of its Constitution.

The rights guaranteed under Article 19 of the Constitution are subject to special restrictions for a period of 25 years in Jammu & Kashmir.

The insertion of Article 35A has conferred the ‘permanent residents’ of Jammu & Kashmir with special rights in regard to employment, acquisition of property and settlement which in fact is discrimination to citizens of India from other states. Article 35A was inserted through a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order of 1954. Therefore, it was added to the Constitution without undergoing the procedure for constitutional amendments as laid down in Article 368. The Presidential Order was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution (Opinion, 2018). However, since it is been inserted through an apparently unconstitutional method, it is now pending for consideration by Supreme Court. Thus it would be per incuriam to duly term it as an Article under Indian Constitution at this juncture.

So as to foster trade, peace and prosperity in the state, better known as paradise on earth, it is very necessary to bridge the gap between Jammu & Kashmir and India by integrating them. This would be unequivocally possible with abrogation of Article 370 from the Constitution of India.

Our Constitution recognizes a federal system of government, which means integrity and unity between the States and Union. The federal structure of the Constitution ensures that States and Union, both are equally important and to achieve its objective, we need a single Constitution of the country. We need Integrity. We need Unity. We need a unitary Preamble. 

 

References:

Article 370. (2019, March 1). Retrieved from http://www.legislative.gov.in/sites/default/files/COI-updated-as-31072018.pdf

Preeti Motiani. (2018, October 15). Govt. exempts Aadhaar. Retrieved from Economic Times: https://economictimes.indiatimes.com/wealth/personal-finance-news/who-are-eligible-to-apply-for-aadhaar-find-out/articleshow/59998036.cms?from=mdr

Basu, D. D. (2015, March 1). Introduction to the Constitution of India. In D. Basu, Introduction to the Constitution of India (pp. 282-291). LexisNexis.

Constitution of Jammu and Kashmir, 1956. (2019, March 1). Retrieved from Jammu and Kashmir law: http://jklaw.nic.in/the_constitution_of_jammu_and_kashmir_1956.pdf

Difference between Ranbir Penal Code and Indian Penal Code. (2019, March 1). Retrieved from Academia: https://www.academia.edu/10757264/difference_between_Ranbir_penal_code_and_Indian_penal_code

Opinion. (2018, August 24). Retrieved from The Hindu: https://www.thehindu.com/opinion/op-ed/should-article-35a-be-scrapped/article24763536.ece

 Image Source: Kashmir Observer

(The views expressed by the author are his personal. For any feedback, he may be reached via shrikrishna.law@gmail.com)

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Written By Shrikrishna Kachave

Shrikrishna is an introvert, a pacifist and takes pride in being a righteous human being.

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