President Rajendra Prasad today issued an order under Article 370 of the Constitution extending to the State of Jammu and Kashmir such parts of the Indian Constitution with such modifications as were agreed upon in the Delhi Agreement. Among parts of the Constitution which have been extended to Kashmir now are the ones dealing with fundamental rights, the legislative, executive and judicial organs of the Union and their powers, relations between the Union and the State on finance, trade, commerce and intercourse within the Union and elections to Union bodies.
Work of Constituent Assembly
Three years ago a proclamation was issued for the convening of Constituent Assembly for Jammu and Kashmir to frame a democratic Constitution for the State. The Assembly has now completed the first part of the task and set its final seal of approval on the constitutional relationship between the State and the Indian Union to which it acceded in 1947. The decisions of the Assembly are being implemented by the issue of an Order of the President under Article '370 of the Constitution of India.
Under this article, the President has been authorised to issue, after consulting the State Government, an Order applying the relevant provisions of the Constitution relating to Foreign Affairs, Defence and Communications in regard to which the State had acceded to the Union in 1947.
Further extension of the Union's jurisdiction or the application of other parts of the Constitution to the State was left to be made with the concurrence of the Constituent Assembly. Discussions were Initiated with the State Government in 1950 in regard to the application of provisions relating to other than these three subjects. Agreement on certain broad principles was reached in June 1952 and embodied in what has since been known as the ‘Delhi Agreement’.
As a result of further detailed discussions with the State Government, it was agreed that the Constitution (Application to Jammu and Kashmir), Order issued in I960, should be replaced by a more comprehensive one applying practically all the material parts of the Constitution relating to the Union, including a majority of the subjects included in the Union List. These proposals which have received the concurrence of the Constituent Assembly of the State are embodied in the new Order now issued by the President.
Fundamental rights
Under the new Order Parts I to III, V and XI to XXII of the Constitution of India will be applied to Jammu and Kashmir with appropriate modifications. These relate to citizenship and fundamental rights, the legislative, executive and judicial organs of the Union and their powers, relations between the Union and the State, finance, trade, commerce and intercourse within the Union, elections to the Union, legislative bodies, etc.
The points included in the ‘Delhi Agreement’ of 1952 have been fully covered in the new Order, except in regard to the head of the State, provisions relating to whom will be appropriately embodied in the State Constitution. In view of the special circumstances of the State and in implementation of the 'Delhi Agreement', certain modifications have been made. In applying the parts mentioned above, in order to remove any apprehension that a closer union might prejudicially affect the interests of the permanent residents of the State, the State Legislature has been authorised to make laws safeguarding the interests of the permanent residents of the State in regard to matters like the acquisition of immovable property, settlement in the State and employment under the State Government.
A part of the State territory is now in the occupation of an alien power. In an emergency, the normal practice everywhere is to suspend the operation of safeguards relating to the exercise of fundamental rights, and to entrust the executive Government and the Legislature with plenary power to cope with the situation. It has been not necessary to adopt this drastic step.
Instead the State Legislature has been given power to impose such restrictions on the exercise of the rights relating to freedom of speech, and expression, right to form associations and unions and to move freely within the State as may be necessary to safeguard the security of the State, but this special authority, again, would be available only for a period of five years from the commencement of tha Order. Provision is also being made to safeguard the land reforms effected a few years ago.
The Supreme Court will exercise practically the same jurisdiction in Jammu and Kashmir as in other parts of the country. Besides, being the guarantor of the fundamental rights embodied In the Constitution, the Supreme Court will have original jurisdiction under Article 131 of the Constitution and appellate jurisdiction in regard to civil and criminal cases. It will be the final judicial authority to interpret the Constitution.
The financial relationship as well as the allocation of taxation powers between the Centre and Jammu and Kashmir State will now be the same as those existing between the Central Government and other Part A or Part B States. All the important provisions relating to the freedom of inter-State trade and commerce* are being applied in full.
As a result, customs duties levied by the State Government are being removed, trade between the State and other parts of the Union will now be free and is bound to expand, and the people of the State relieved of a heavy load of taxation. While the bulk of the Union List will be applicable, there are important exceptions, for example, the State will retain exclusive competence in regard to matters relating to industrial and mineral development, census and company laws. Similarly, powers relating to the constitution and organisation of the State High Court, its powers and jurisdiction are also matters within the exclusive competence of the State. The Concurrent List will not also apply. Again, residuary authority vests in the State. These exceptions mark the special position accorded to the State within the constitutional framework.
