Monday, January 30, 2012

Integration of Jammu Kashmir- A Constitutional & legal Process


Jammu & Kashmir, in legal terms of present times, became an integral part of the Republic of India in 1947. The Indian Independence Act 1947, of the Parliament of the United Kingdom that partitioned British India into the two new independent dominions of India and Pakistan received the royal assent on 18 July 1947, and the two new countries came into being on 15 August. This very Act authorized the rulers of the Princely States, till then under the paramount power of the British, to accede to either of the two dominions

On August 14, 1947, the Governor General made the India (Provisional Constitution) order adapting the Government of India Act 1935; as the interim constitution of India with the changes specified in the Act. Section 6 of the Act provided that "an Indian State shall be deemed to have acceded to the Dominion if the Governor General has signified his acceptance of an Instrument of Accession executed by the Ruler. No last date was mentioned in the Act or the instrument of Accession by which a ruler was supposed to sign the accession Deed.

Maharaja Hari Singh, the ruler of Jammu and Kashmir State, signed the same standard form of the Instrument of Accession in October 1947, which the other Indian rulers signed to accede to the then Indian Dominion. The Instrument of Accession was evolved by the States Department, headed by Sardar Vallabh Bhai Patel, and was based upon the principles that Cabinet Mission had stipulated for the accession of the Indian States to the All India federation. No separate or special provisions were incorporated in the Instrument of Accession signed by Hari Singh and there was no precondition or agreement, accepted by the Government of India to any separate and special constitutional arrangement, to the exclusion of the other acceding States.

Soon after signing the Instrument of Accession Maharaja Hari Singh issued a proclamation  charging Sheikh Mohd. Abdullah to function as the Head of the Administration with power to deal with the emergency arising out of Pakistani invasion.. On 5th March 1948, the Maharaja issued another proclamation to replace the Emergency Administration by a ‘Popular’ Interim Government, pending the formation of a fully democratic Constitution. This proclamation further desired that Council of Ministers shall take appropriate steps, as soon as restoration of normal conditions has been completed, to convene a National Assembly based upon adult suffrage, having due regard to the principle that the number of representatives from each voting area should, as far as practicable, be proportionate to the population of that area. The Constitution to be framed by the National Assembly was supposed to provide adequate safeguards for the minorities and contain appropriate provisions guaranteeing for the freedom of conscience, freedom of speech and freedom of assembly.


 After the accession of the States to union of India, their integration into viable administrative units and the institution of their Constituent Assemblies proved more difficult a task than anticipated. In view of these difficulties, the whole question of constitution making in the States was considered in May 1949, at a Conference of the Premiers of the States and the Union of States. The Conference of the Premiers decided not to wait until the Constituent Assemblies in the States were convened and instead decided to leave the task of the framing of the Constitution of the States to the Constituent Assembly of India. 93 members were representing these states in the Constituent Assembly that framed the constitution for whole of India. At least Half of The members allotted to the Princely states were to be nominated by rulers of these states. Jammu & Kashmir had to send 4 members to the Constituent Assembly. In normal course two of them were to be nominated by Maharaja Hari Singh, the Ruler and the remaining two were supposed to be elected from the representatives of state legislature, Praja Sabha in this case, for which election had taken place only in 1946.

 The state of Jammu and Kashmir was under invasion. A war was being fought there and the case of this aggression was taken to UNO by India, under misguided belief of Prime Minister Jawahar Lal Nehru about the fairness of western powers. So the situation was that a war was going on in the state of Jammu Kashmir, the issue was in UNO and the state was under the administration of SM Abdullah. Taking undue advantage of this situation several legal and constitutional steps were taken to favour Sheikh Mohd. Abdullah.

On 27th of May 1949 PARA 4-A was added to CONSTITUENT ASSEMBLY RULES saying, “Notwithstanding anything contained in paragraph 4, all the seats in the Assembly allotted to the State of Kashmir otherwise as the State of Jammu and Kashmir) may be filled by nomination and the representatives of the State to be chosen to fill such seats may be nominated by the Ruler of Kashmir on the advice of his Prime Minister.'" This snatched the right to nominate members from the legal Ruler and Sheikh Abdullah nominated all the four members from NC, three of them form Kashmir valley and an uneducated member from Jammu. Government of India, as a legal and constitutional authority, was taking decisions with regard to J&K.

On Thursday, the 16th June 1949 Members from the state took the pledge and signed the Register in Constituent Assembly. The members were Sheikh Mohd. Abdullah, Mirza Mohd. Afzal Beg, Maulana Mohd. Syeed Masoodi and Shri Moti Ram Baigra. With this began the politics of blackmail and intimidation that resulted in delayed and limited constitutional appliance to the state. The purpose was to exclude the state from constitutional arrangement evolving in the rest of country and ensure creation of a semi independent Sheikhdom.

 But in spite of these efforts Jammu Kashmir continued to be part of Constitutional mechanism of Union of India.the modus operandi of Sheikh Abdullah wasto complain, show annoyance, threaten to resign from the Constituent Assembly of India and question the Accession of the state itself in a manner that would impact Indian stand in UNO. The result was that the process of integration that went on smoothly in rest of the country became rather complicated in this case.

On 17th October, 1949 Article 306 A which later became Article 370 was debated and added to the constitution of India. The motion read "That with reference to Amendment No.379 of List XV (Second Week), after article 306, the following new article be inserted: -

'306A. (1) Not withstanding anything contained in this Constitution. (a) the provisions of article 211A of this Constitution shall not apply in relation to the State of Jammu and Kashmir. (b) the power of Parliament to make laws for the State shall be limited to (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India are the matters with respect to which the Dominion Legislature may make laws for the State; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify;

Explanation :- For the purposes of this article, the government of the State means the person for the time being recognised by the union as the maharaja of Jammu and Kashmir, acting on the advice of the Council of Ministers, for the time being in office, under the Maharaja's Proclamation, dated the fifth day of March, 1948.

(c) the provisions of article 1 of this Constitution shall apply in relation to the State; (b) such of the other provision of this Constitution and subject to such exceptions and modifications shall apply in relation to the State as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State aforesaid shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in sub-clause (b) (ii) or in the second proviso to sub-clause (d) of clause (1) was given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the preceding clause of this article, the President may, by public notification declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification'."

  The motion was adopted.  Article 306A was added to the Constitution.


The Constituent Assembly formally approved the draft Constitution on November 26, 1949. On January 26, 1950, the Constitution took effect, a day now commemorated in India as Republic Day. On the same day president of India issued THECONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1950 thereby applying the constitution of India to the state of Jammu and Kashmir.

While this was happening on Sheikh Abdullah and NC continued their efforts to disrupt the complete integration. Their tirade against Maharaja Hari Singh continued unabated. And Hari Singh continued to make way for the devolution of power to the people of state in a legal, constitutional and democratic manner. He was forced to leave the state. On 9th June, 1949 he issued his last proclamation entrust to the Yuvaraj Karan Singh powers and functions in regard to the Government of the State. As regent of Jammu & Kashmir Karan Singh issued a proclamation on 25th November 1949 and accepted the new constitution drafted by the Constitution Assembly for the whole of India replacing the Government of India Act, 1935.

Referring to terms of the proclamation of the Maharaja dated 5 March, 1948 in regard to the convening of a constituent assembly for the state, Yuvraj Karan singh on Ist May1951 issued proclamation for convening Constituent Assembly consisting of representatives of the people, elected on the basis of adult franchise for the purpose of framing a constitution for the State of Jammu and Kashmir.

Sheikh Abdullah and National Conference continued to make several justified demands and through negotiations with Jawahar Lal Nehru an agreement is arrived at on July 24, 1952 between NC headed by Sheikh Abdullah and Jawahar Lal Nehru, the Prime Minister of India which provided

a)in accordance with Article 5 of the Indian Constitution , persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India but the State legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notification’ of 1927 and 1932: the State legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;

iii) as the President of India commands the same respect in the State as he does in other Units of India , Article 52 to 62 of the Constitution relating to him should be applicable to the Stat . It was further agreed that the power to grant reprieve, pardons and remissions of sentences etc.; would also vest in the President of India;

iv) the Union Government agreed that the State should have its own flag in addition to the Union flag, but it was agreed by the State Government that the State flag would not be a rival of the Union flag; it was also recognized that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India

though the Sadar-i-Riyasat was to be elected by the State Legislature, he had to be recognized by the President of India before his installation as such; in other Indian states the Head of the States was appointed by the President and was as such his nominee but the person to be appointed as the Head, had to be a person acceptable to the Government of that State; no person who is not acceptable to the State Government can be thrust on the State as the Head. The difference in the case of Kashmir lies only in the fact that Sadar-i-Riyasat will in the first place be elected by the State Legislature instead of being a nominee of the Government and the President of India.

vi) with regard to the fundamental rights, some basic principles agreed between the parties were enunciated; it was accepted that the people of the State were to have the fundamental rights. But in the view of peculiar position in which the state was placed in particular Sheikh Abdullah’s land reforms programmes , the whole chapter relating to “ Fundamental Rights” of the Indian Constitution could not be made applicable to the State, the question which remained to be determined was whether the chapter on fundamental rights should form a part of the State Constitution or the Constitution of India as applicable to the State;

vii) with regard to the jurisdiction of the Supreme Court of India, it was accepted that for the time being , owing to the existence of the Board of Judicial Advisers in the State , which was the highest judicial authority in the State , Supreme Court should have only appellate jurisdiction;

viii)  there was a great deal of discussion with regard to the “Emergence Powers”. The Government of India insisted on the application of Article 352 , empowering the President to proclaim a general emergency in the State ; the State Government argued that in the exercise of its powers over defence ( Item1 on the Union List), in the event of war or external aggression , the Government of India would have full authority to takes steps and proclaim emergency but the State delegation was, however , averse to the President exercising the power to proclaim a general emergency on account of internal disturbance.

In order to meet the viewpoint of the State’s delegation, the Government of India agreed to the modification of Article 352 in its application to Kashmir by the addition of the following words;

“but in regard to internal disturbance at the request or with the concurrence of the government of the State” At the end of clause 

Delhi Accord invalidated

 A serious opposition to S. M. Abdullah had developed in Jammu under the Praja Parishad, which launched a political movement with Shri Prem Nath Dogra as its leader.  Ladakh also rouse against sheikh Abdullah. Dr. Syama Prasad Mukherjee was the President of Jan Sangh Party at the national level who commented that there was, or would soon be, “two Constitutions, two flags and two Prime Ministers in one country and cannot be tolerated”. The popular slogans of the Praja Parishad agitators were – “ek desh mein do vidhan; ek desh mein do nishan; ek desh mein do pradhan nahi chalen gay” (in one country , two Constitutions; in one country two flags , in one country two Prime Ministers will not be tolerated). It was a strong peoples  movement with a tremendous support in rest of the country. Sheikh Abdullah started  demonstrating arrogance and began to defy Union of India. Situation turned out of control and Prime Minister Jawar Lal Nehru , the close friend of Sheikh was forced to see the later dismissed and arrested in August 1953. A case, known as Kashmir conspiracy case was registered against Sheikh Abdullah.

 National Conference continued to be in power in the state with Bakshi Ghulam Mohamad succeeding as Prime Minister. Thus the agreement that was reached between Sheikh Abdullah and Pt. Nehru as thrown into the dustbin of history with the dismissal and arrest of its architect. On 20 August 1952, the state Constituent Assembly under the leadership of Sheikh Abdullah unanimously adopted a resolution piloted by Mr. D.P. Dhar terminating the monarchy in the State. With the abolition of monarchy, all or any conditions attached by the monarch for himself stood discharged, resulting in the constitutional merger of the State the same day. The status of Raj Pramukh (Regent) was switched over to an elected Sadar-e-Riyasat. The Accession was ratified by the Constituent Assembly.

The J&K constitution was launched formally on 26 January 1957. Section 3 unequivocally states that “J&K is integral part and shall remain integral part of India ”. This provision clearly provides in the First Schedule, item no.15 of Article 1 of the Constitution of India, which includes J&K as one of the States of the Union of India under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”. The State of Jammu and Kashmir was included in 1st Schedule as 15th state.

On February 15, 1954 the Constituent Assembly adopted the following resolution unanimously: Resolved that "(a) having adopted the report of the drafting committee thisday, the 1 5Ih February, 1954 and (b) having thus given its concurrence to the application of the provisions for the Constitution of India in the manner indicated in the Annexure to the aforesaid report this Assembly authorizes the Government of

The State to forward a copy of the said Annexure to the Government of India for appropriate action". by the 1954 Order, the Parliament could thereafter make laws in respect of all matters specified in the Union list. the Article was further modified in its application to the State vide C.O. No. 66 dated 28th September, 1963, enabling Parliament to make laws for the
State in respect of matters in the Concurrent List also.   

With the passage of time, The Constitution ( Application to Jammu and Kashmir) Order, 1954 was promulgated by the President of India in consultation with the Government of J&K, regulating the constitutional status of the State; and apart from it several Central laws got extended to the J&K State and even the nomenclature of Sadar-i-Riyasat and Prime Minister were changed to Governor and Chief Minister on March 30, 1965.

The list of Constitution Orders applying various provisions of the Indian Constitution to the State given below:-

1. The Constitution (Application to J&K order, 1954 C.O. 48 Dated 14.5.1954.

2. The Constitution (Application to J&K Amendment Order, 1956 C.O. 5 1 dated 11.2.1956.

The constitution (Application to J&K) Amendment Order, 1958 C.O. 55 Dated 16.1.1958.

The Constitution (Application to J&K) Second Amendment Order, 1958 C.O. 56 dated 26.2.1958.

The Constitution (Application to J&K) AmendmentOrder 1959 C.O. 57 dated 9.2.1959.

The Constitution (Applicationto J&K)SecondAmaadment Order 1959, C.O. 59 dated 23.4.1959.

The Constitution (Application to J&K) Amendment Order 1960, C.O. 60 dated 20.01.1960.

The Constitution (Application to J&K) Second Amend ment Order 1960, C.O. 61 dated 22.6.1960

The Constitution (Application to J&K) Amendment Order 1961, C.O. 62 dated 2.5.1961.

The Constitution (Application to J&K) Amendment Order 1963, C.O. 66 dated 28.9.1963.

The Constitution (Application to J&K) Amendment Order 1964, C.O. 69 dated 6.3.1964

The Constitution (Application to J&K) Second Amendment Order 1964, C.O. 70 dated 2.10.1964.

The Constitution (Application to J&K) Third Amendment Order 1964, C.O. 71 dated 21.11.1964.

The Constitution (Application to J&K) Amendment Order 1965, C.O. 72 dated 17.5.1965.

The Constitution (Application to J&K) Second Amendment Order 1965, C.O. 74 dated 24.11.1965.

The Constitution (Application to J&K) Amendment Order 1966, C.O. 75 dated 29 6.1966.

The Constitution (Application to J&K) Amendment Order 1967, C.O. 76 dated 13.2.1967.

The Constitution (Application to J&K) Amendment Order 1967, C.O. 77 dated 5.5.1967.

The Constitution (Application to J&K) Third Amendment Order 1967, C.O. 79 dated 11.8.1967.

The constitution'(Application to J&K ) Fourth Amendment Order 1967, C.O. 80 dated 26.12.1967.

The Constitution (Application to J&K) Amendment Order 1968, C.O. 83 dated 9.2.1968.

The Constitution (Application to J&K) Amendment Order 1969, C.O. 85 dated 17.2.1969.

The Constitution (Application to J&K) Second Amend ment Order 1969, C.O. 86 dated 3 1.3.1969.

The Constitution (Application to J&K) Amendment Order 1971, C.O. 89 dated 24.8.1971.

The Constitution (Application to J&K) Second Amend ment Order 1971, C.O. 90 dated 8.11.1971.

The Constitution (Application to J&K) Third Amendment Order 1971, C.O. 91 dated 29.11.1971.

The Constitution (Application to J&K) Amendment Order.1972, C.O. 92 dated 24.2.1972.

The Constitution (Application to J&K) Second Amendment Order 1972, C.O. 93 dated 6.5.1972.

The Constitution (Application to J&K) Third Amendment Order 1972, C.O. 94 dated 2.8.1972.

The Constitution (Application to J&K) Fourth Amendment Order 1972, C.O. 95 dated 10.8.1972.

The Constitution (Application to J&K) Amendment Order 1974, C.O. 97 dated 1.5.1974.

The Constitution (Application to J&K) Second Amendment Order 1974, C.O. 98 dated 26.6.1974.

The Constitution (Application to J&K) Amendment Order 1975, C.O. 100 dated

The Constitution (Application to J&K) Second Amendment Order 1975, C.O. 101 dated 23.7.1975;

The Constitution (Application to J&K) Amendment Order 1976, C.O. 103 dated 2.3.1976.

The Constitution (Application to J&K) Second Amendment Order 1976, C.O. 104 dated 25.5.1976.

The Constitution (Application to J&K) Third Amendment Order 1976, C.O. 105 dated 12.9.1976.

The Constitution (Application to J&K) Fourth Amendment Order 1976, C.O. 106 dated 3 1.12.1976.

The Constitution (Application to J&K) Amendment Order 1977, C.O. 108 dated 31.12.1977.

The Constitution (Application to J&K) Amendment Order 1985, C.O. 122 dated 4.6.1985.

The Constitution (Application to J&R) Second Amendment Order 1985, C.O. 124 dated 4.12.1985.

The Constitution (Application to J&K) Amendment Order 1986, C.O. 129 dated 30.7.1986.

First election to the J&K Legislative Assembly under new constitution were held in March 1957 (NC bagged 68 out of 75 seats). On 26 February 1958 Jurisdiction of the C&AG was extended and Provisions relating to the All India Services applied to the State.

In 1959 State Assembly unanimously decided to seek amendment of the State constitution to provide for the extension of the jurisdiction of the Election Commission of India and the Supreme Court over the J&K State.20 January 1960   Provisions relating to appeal to Supreme Court by special leave and Election Commission's jurisdiction was extended over the State elections.
From 17-18 February 1962     Second General elections in J&K held (NC got 70 seats). 65% voters cast their ballot.

On 21 December 1964 Article 356 was applied t ensure that President's Rule can be imposed in the event of the failure of State constitution. The nomenclature of Sadar-e-Riyasat and Wazir-e- Azam were changed to Governor and Chief Minister in the State Constitution on 10 April 1965. Sixth Amendment of the J&K Constitution provided for the substitution of Sadr-e-Riyasat by Governor and of the Prime Minister by Chief Minister.

5-6 March 1967 Third Assembly elections held. Congress secured 61 seats followed by the NC (Bakshi) with 8 seats. 59% voters cast their ballot. 8 February 1972            Fourth Legislative Assembly elections held. Congress secured 58 seats. J&K Jamaat-e-Islami, contesting elections for the first time, won 5 seats. 62% voters cast their ballot.

INDIRA –Abdullah Accord

After the defeat of Pakistan and emergence of Bangladesh situation in the this part of the world had changed significantly. These changes had an impact on J&K also. Sheikh Abdullah demonstrated  his willingness to join mainstream. After prolonged parleys , on 13 November 1974           Kashmir accord signed between Sheikh Abdullah and Mrs. Indira Gandhi (Beg-Parthasarthy Accord).  Section 3 of this accord said, “Where any provision of the Constitution of India had been applied to the State of Jammu and Kashmir with adaptations and modifications, such adaptations and modifications can be altered or repealed by an order of the President under Article 370, each individual proposal in this behalf being considered on its merits; but provisions of the Constitution of India already applied to the State of Jammu and Kashmir without adaptation or modification are unalterable.

Section 4 of it says “With a view to assuring freedom to the State of Jammu and Kashmir to have its own legislation on matters like welfare measures cultural matters, social security, personal law and procedural laws, in a manner suited to the special conditions in the State, it is agreed that the State Government can review the laws made by Parliament or extended to the State after 1953 on any matter relatable to the Concurrent List and may decide which of them, in its opinion, needs amendment or repeal. Thereafter, appropriate steps may be taken under Article 254 of the Constitution of India. The grant of President's assent to such legislation would be sympathetically considered. The same approach would be adopted in regard to laws to be made by Parliament in future under the Proviso to clause 2 of the Article. The State Government shall be consulted regarding the application of any such law to the State and the views of the State Government shall receive the fullest consideration.”

Section 5 made a significant point. It says, “As an arrangement reciprocal to what has been provided under Article 368, a suitable modification of that Article as applied to the State should be made by Presidential order to the effect that no law made by the Legislature of the State of Jammu and Kashmir, seeking to make any change in or in the effect of any provision of Constitution of the State of Jammu and Kashmir relating to any of the under mentioned matters, shall take effect unless the Bill, having been reserved for the consideration of the President, receives his assent; the matters are:

(a) the appointment, powers, functions, duties, privileges and immunities of the Governor, and

(b) the following matters relating to Elections namely, the superintendence, direction and control of Elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discrimination, adult suffrage and composition of the legislative Council, being matters specified in sections 138, 139 140 and 50 of the Constitution of the State of Jammu and Kashmir.

6. No agreement was possible on the question of nomenclature of the Governor and the Chief Minister and the matter is therefore, remitted to the Principals.

24 February 1975 The Indian Prime Minister said 'Clock can't be put back'. On behalf of the Kashmiri leadership the NC reiterated that the accession of the State of J&K is not an issue anymore. On 25th February 1975        Sheikh Abdullah took over as the Chief Minister with the support of Congress.

Soon after assuming office after winning what is being cherished as the fairest election by even opponents of India, the NC government constituted a committee to look into the so called erosion of state autonomy under the chairmanship of then deputy chief Minister DD Thakur. The three member committee headed by DD Thakur had G.N. Kouchak and GM Shah as its other members. They were asked to look into the issue of erosion of what they called state autonomy after 1953.  The Committee presented two reports; while DD Thakur report described the application of all the Central laws beneficial for the people of the state and the Kouchak—Shah Report talked of erosion but Sheikh Abdullah accepted DD Thakurs recommendations.

Even the autonomy report of NC during Farooq Abdullah’s time, while asking for autonomy, noted, “Not all these Orders can be objected to. For instance none can object to provision for direct elections to Parliament in 1996, delimitation of Parliamentary constituencies, etc. It is the principle that matters. Constitution limits are there to be respected, not violated.”
since 1975, 18 Central laws including POTA were extended to the state in the NC regime . it found no objection to the application of any article of Constitution of India that took place after 1953.

 We therefore see that the state of Jammu and Kashmir has continued a process of constitutional integration with the union of India. This process may have been slow and long drawn as compared to other state, but it is irreversible. This process needs to be accelerated so that the ultimate objective of complete integration as promised by leaders including  Prime Minister Jawahar Lal Nehru during the debates in constituent Assembly and subsequently in Parliament also. The unnecessary delay is creating avoidable confusion and doubts in the minds of vulnerable sections of the state population.

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