Centre seeks debate in SC on J&K special status

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The Centre asked the Supreme Court to debate on the special status granted to the State of Jammu and Kashmir, saying it was both a sensitive and constitutional matter.

Plea said that non-residents in J&K faced discrimination

The top law officer was responding to a PIL plea filed by a Delhi-based NGO, We the Citizens, contending that the J&K government, given the State’s special autonomous status under Articles 35A and 370, was discriminatory against non-residents as far as government jobs and real estate purchases were concerned.

What the State government argued over the Article 370?

  • The State government argued that its special status was sourced from the 1954 Presidential Order, which gave special rights to the State’s permanent residents.

  • The hearing comes in the backdrop of an earlier Jammu and Kashmir High Court, which ruled that Article 370 assumed a place of permanence in the Constitution and the feature was beyond amendment, repeal or abrogation. The court said Article 35A gave “protection” to existing laws in force in the State.

High Court observed Article 370

  • Article 370 though titled as ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions’ has assumed place of permanence in the Constitution,” it observed.

  • It [Article 370] is beyond amendment, repeal or abrogation, in as much as the Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal.

  • It also observed that the President under Article 370 (1) was conferred with power to extend any provision of the Constitution to the State with such “exceptions and modifications” as may be deemed fit subject to consultation or concurrence with the State government. The High Court said J&K, while acceding to the Dominion of India, retained limited sovereignty and did not merge with it.

Implications of Article 370

Article 370 specifies that except for Defence, Foreign Affairs, Finance and Communications the Indian Parliament needs the State Government’s concurrence for applying all other laws.  This has some peculiar implications as follows:

Applicability of parts

  • Most provisions of the Constitution which are applicable to other states are not applicable to J&K. Part VI in whole is not applicable to Jammu & Kashmir.

Jurisdiction of Indian Parliament

  • The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir is confined to the matters enumerated in the Union List, and also the concurrent list.

  • There is no State list for the State of Jammu and Kashmir. At the same time, while in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary powers belong to the Legislature of the State, except certain matters to which Parliament has exclusive powers such as preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of India.

  • The power make laws related to preventive detention in Jammu and Kashmir belong to the Legislature J & K and not the Indian Parliament. Thus, no preventive detention law made in India extends to Jammu & Kashmir.

  • Kashmir enjoys some other privileges over and above the other states of India. For example, the plenry power of parliament with respect to alteration of the name or territories of the State (Art.3) does not extend to the state. Similarly, International treaty or agreement affecting any part of the territory of the state (Art.253) doesn’t extend to Jammu and Kashmir.

  • Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

  • Any action of the Union Legislature or Union Executive which results in alteration of the name or territories or an international treaty or agreement affecting the disposition of any part of the territory of Jammu and Kashmir requires the consent of the State Legislature.

Emergency

  • Initially, Article 356 and 357 did not apply to India. However, these two articles related to suspension of the Constitutional machinery in the state have been extended to the state by the Amendment Order of 1964. However, Failure means failure of the constitution machinery as set up by the Constitution of the State and not the provisions in part VI of the Constitution of the India. As a result, where the failure of the Constitutional machinery takes place in Jammu & Kashmir, two types of Proclamation may be made

    • The President’s Rule under Art. 356 of the Indian Constitution (as in the case of the other States of the Indian Union)

    • The Governor under section 92 at the Constitution of J&K for which there is no counter part in any other State of India.

  • The Union of India has no power to declare Financial Emergency under Article 360 in the state.

Fundamental Rights

  • Apart from the rights enjoyed by all states of India, some special right as regards employment, acquisition of property and settlement have been conferred on permanent resident of the State by constitution of Jammu and Kashmir. Right to property is still a fundamental right in the state.

DPSP & Fundamental Duties

  • Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K.

Amendment of the Constitution

  • The provisions of Art. 368 of the Constitution of India are not applicable for the amendment of the State Constitution of Jammu & Kashmir. The Jammu & Kashmir assembly by two third majority amend its own constitution (except in those matters that are related to relationship of the State with the Union of India)

  • The Union has no power to suspend the Constitution of J&K.

Jammu & Kashmir High Court

  • The High Court of J&K has limited powers as compared to other High Courts within India. It cannot declare any law unconstitutional. Unlike High Courts in other states, under Article 226 of the Constitution, it cannot issue writs except for enforcement of Fundamental Rights.

Source:TH

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