By Sarat C. Neog
Truncated India gained independence on 15th August, 1947 and Pakistan was created as a new country. Jammu and Kashmir was, by that time, a princely State ruled by the king Maharaja Hari Singh. On 6th of October, 1947, some Muslim tribes supported by Pakistan Government invaded Kashmir with the sole intention of forcible accession of Jammu and Kashmir to Pakistan. Maharaja Hari Singh immediately requested the Government of India for military help. Home minister Patel’s trusted aide V P Menon rushed to Srinagar and had discussion with the Maharaja. Maharaja Hari Singh signed the instrument of accession with India which was immediately accepted by the Governor General of India, Lord Mountbatten.
- Abdullah, Prime Minister of Jammu and Kashmir, was kept in detention and later released by the Maharaja. Abdullah approached Prime Minister Nehru for more autonomy to the State. Dr. B R Ambedkar, principal drafter of the Constitution had initially refused to draft Art. 370. With the continued intervention of Nehru, Art. 370 was incorporated in the Constitution only to grant special status to Jammu and Kashmir. Empowered by Art.370, the Constituent Assembly adopted the Constitution of Jammu and Kashmir on 17th November,1956 which came into force with effect from the 26th day of January,1957. Thus Jammu and Kashmir has become the only State to have a separate constitution within the Union of India. The State enjoys maximum autonomy not enjoyed by other States. Parliament cannot legislate on subjects under concurrent List. Residual powers are vested in the State Government. President of India can declare emergency in Jammu and Kashmir only in case of war. The provisions of the Constitution of India in Part IV( Directive principles) and IVA( Fundamental Duties) are not applicable in Jammu and Kashmir. Our Constitution has adopted the concept of single citizenship for the whole country while the Constitution of Jammu and Kashmir defines a wonderful concept of permanent residency. The permanent residents of Jammu and Kashmir enjoy special rights over property depriving the people from other States. Citizens of India from other parts of the country cannot buy land or other property in J&K whereas a Kashmiri can buy property in any part of the country. The period of Jammu and Kashmir Assembly is fixed at 6 years while for the rest of India it is 5 years.
No doubt the Judges of the Jammu and Kashmir High Court are appointed by the President of India in accordance with the provision laid down in the Constitution of India. They take oath to uphold the Constitution of the State instead of the Constitution of India. The Jammu and Kashmir High Court has no power to declare any law unconstitutional. Unlike its counterparts in rest of the country, the J&K High court is not empowered to issue Writs under Art. 226 of the Constitution of India, except in case of enforcement of Fundamental Rights. Judges from other High Courts would not favour a transfer to Kashmir to work in a suffocating judicial atmosphere.
To understand the relations of the State of Jammu and Kashmir with the Union of India in its true perspective, one has to understand the Preamble to the constitution of the State of Jammu and Kashmir. The Preamble reads-“WE THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR having solemnly resolved in persuasion of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof and to secure to ourselves………….. .’’ Needless to say that the preamble is the introduction to the constitution and clearly defines the relationship with Union of India. Article 3 of the Constitution of J&K reads as-The State of Jammu and Kashmir is and shall be an integral part of the Union of India. The Constitution also made elaborate arrangement for the Pak occupied area of the State. Art.48 recognized 24 assembly seats for POK which will remain vacant till Pakistan ceases the “occupation”. It is crystal clear that the State of J&K including the area under occupation of Pakistan is an integral part of India. Some critics in the country mostly intellectuals with left ideals are in doubt as to the accession of J&K. Mere reading of the Preamble followed by a bare perusal of Art. 3 and 48 of the Constitution of J&K, I bet, will remove their unfounded doubt.
Art. 370 of the Constitution of India has extended greater autonomy to the State of J&K with minimal jurisdiction of the Union Government. Adoption of the state constitution is the corollary to Art. 370. The Union Government cannot interfere in the affairs of the State even in case of breakdown of law and order machinery. Emergency for that reason cannot be declared in the State. The State has a separate Flag which also encourages the separatists. The Right to Education is not applicable in the State where education is the prime need of the hour. Most of the people living in the Kashmir valley are quite ignorant of the provision of Art. 3 of the State Constitution which finally settled the undesirable question of Kashmir’s accession to India. The separatists in the valley, time and again, points to the Instrument of Accession signed by the Maharaja Hari Singh which was no doubt a temporary and transitional step. But they, taking advantage of the ignorance of the gullible masses, wilfully ignored the relevant provisions of the State Constitution drafted and adopted by the people of Jammu and Kashmir.
A moot question arises as to whether Art. 370 can be abrogated? Art. 370 of the Constitution of India can be abrogated under Art. 370(3) which states that the President of India may declare that Art.370 shall cease to be operative but in doing so, the recommendation of the Constituent Assembly of the State shall be necessary. At the moment, Constituent Assembly is defunct and there stands no alternative provision in this respect. Perhaps the disputable Article may be removed by an amendment of the Constitution of India itself which appears to be a herculean task for the Government. Any attempt to disturb the present constitutional set up in Jammu and Kashmir may further encourage the separatists. We do hope Government will maintain status-quo and wait for the glorious morning.
(The author is a Retired District Judge)