Today It was our Republic day according This is how we lost our much promised Special Status Promises were like laws; smart men knew when to break both.” says, C. J. Hill, Slayers It was on 17 th of Nov in 1956, the motion moved by Mr. Syed Mir Qasim, in the Jammu & Kashmir Constituent Assembly was adopted and the constitution of Jammu & Kashmir was passed. Same day Qasim’s another resolution was also adopted by virtue of which the constituent assembly would stand dissolved from 26 th Jan 1957. Thus unlike all other states of Indian union Jammu & Kashmir state attained a republican character with a separate constitution, a separate Flag and Citizenship, Independent Judiciary with Sadr - e - Riyasat as head of the State, and executive with Council of Ministers headed by the Prime Minister. The Maharaja Hari Singh through Instrument of Accession dated 26 Oct 1947 surrendered only part of sovereignty with respect to defence, currency & communication in favour of union of India and also he was categorical vide clause 7 of Accession which said “ Nothing in this instrument shall be deemed to commit mean any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with Govt of India under any such future constitution”. Thus at the time of accession Jammu & Kashmir was the only state to declare its intention to have its own constitution to be drafted by its own constituent assembly. After Sheikh Mohammed Abdullah took over as the head of the popular interim Government, in pursuance to Maharaja’s proclamation on 5 th of March 1948, negotiation began with constituent assembly of India for constitutional guarantee with regard to autonomous republican character of Jammu & Kashmir state. After long deliberations, in pursuance to the famous Delhi Agreement in 1952 an article 370 was incorporated in the Indian constitution which was adopted on 26 th of Jan 1950. Article 370 embodies special provisions for Jammu & Kashmir. It exempted the state from the provisions of the Constitution providing governance of all the states. Jammu & Kashmir was allowed to have its own constitution. Parliament’s legislative powers over the state was restricted to three subjects Defence , Foreign affair & Communications. The most important was President of India could through a President’s order extend other provisions of constitution to the state and also abrogate and amend article 370, with “ Prior Concurrence” of the then interim state government. Such powers of the then interim state government were strictly provisional as Article 370( 2) says clearly, “ if the concurrence of the interim govt of state ......... be before the constituent assembly for the purpose of framing of the constitution of the state is convened, it shall be placed before such constituent assembly for such decision as it may take there on”. Thus the Article - 370 imparts ‘ interim power’ to the state Government ( i. e interim government) to give concurrence only till the constituent assembly is conveyed. Once the Kashmir’s constituent assembly was “ conveyed on 31 Oct 1951 the state Govt ( Interim Govt) lost all the authority to accord any concurrence to the union. Once the constituent assembly met, the state government could not give its own concurrence, more so when the assembly met and dispersed. With the dispersal of Constituent assembly on 17 th Nov 1956 after adopting the constitution of Jammu & Kashmir, vanished the only authority which alone could give concurrence for extending more provisions of Indian constitution. Thus with the dissolution of constituent assembly on 25 th of Jan 1956 in terms of its resolution dated 17 Jan, the constitutional relations between union of India and Jammu & Kashmir stands sealed and were final. The powers of the president to extend other provisions of the Indian constitution to Jammu & Kashmir seized as the Jammu & Kashmir Constituent Assembly vested with concurrence powers is non- existent. But unfortunately till date through various president’s orders as many 94 of the 97 entries in the union list were extended to Jammu & Kashmir as were 260 of the 395 articles of the constitution. These President’s orders have been issued with the consent of the successive state government and Jammu & Kashmir state assemblies which in no way can be substitute of the constituent assembly which alone had the powers to accord the concurrence. Thus by illegal and un- constitutional manipulations, the basic structure of the Jammu & Kashmir constitution was altered and the Jammu & Kashmir having lost its semi- sovereign republican character. The article 370 was abused not only to amend the constitution of India but also of the state of Jammu & Kashmir. The worst of it is that even after the Indra - Sheikh Accord in February 1975, on 23 July 1975 the president through a President’s order debarred the state legislature from amending the state constitution on the matter in respect of Governor, the election Commission and even the composition of upper house, the legislative counsel. Jammu & Kashmir is being treated inferior to other states as parliament had to amend the constitution 4 times by means of 59 th , 64 th 67 th & 68 th Constitutional amendments to extend the president rule in Punjab during 1987. Where as in J & K from 1990 to 1996 the Governor’s rule was extended only through president’s orders under article 370. During 1986 through a president’s order dated 13 th July 1986 article 249 of Indian constitution was extended to Jammu & Kashmir. It empowered the parliament to legislate even on a matter in the state list on the strength of Raj Sabha resolution. The requirement of concurrence was given by the Governor Jagmohan who was then ruling the state. The union thus acquired vast powers to legislate not only on the all matters in state list but also others not mentioned in union list or the concurrent list – Residuary Power. In relation to other states, an amendment in constitution would require a 2/ 3 rd vote by both the houses of parliament plus ratification by the state ( Article 368). With respect to Jammu & Kashmir, the presumed powers of the president are sufficient to issue the President’s orders which does not need 2/ 3 rd vote of both houses of the parliament. The mis- interpretation of Article 370 with respect to President’s powers has taken away the semi- sovereign character of Jammu & Kashmir. This is how we have lost our much promised “ Special Status”.
Posted on: Sun, 17 Nov 2013 03:01:44 +0000
Trending Topics
Recently Viewed Topics
© 2015