CENTRE STATE RELATIONS IN THE CONTEXT OF JAMMU AND KASHMIR
1. INTRODUCTION:
The Indian Constitution's founders observed that the country's system of "Cooperative Federalism" reflected a desire for federal principles. Consequently, the goal of Indian federalism is to foster strong collaboration between the federal government and the state(s). The Constitution defines what can be alone regulated by the federal government, what can be regulated by the states alone, and what can be regulated simultaneously by the federal government and the states. The nature of the federalism is that the division of power between state and central and both these have to function within their jurisdictions but the Jammu and Kashmir was not governed by this general scheme of federalism but it was governed by the federal relation by way of Article 370. Therefore this article will explain about the centre state relations in the context of Jammu and Kashmir.
2. BACKGROUND OF RELATION BETWEEN THE UNION AND THE JAMMU AND KASHMIR:
The first day of India's and Pakistan's independence, which fell on August 14 and 15, respectively, marks the beginning of the relationship between the Indian union and the state of Jammu and Kashmir. Whereas a large number of Muslim-majority regions in the Western and Eastern regions joined Pakistan, and the state of Jammu and Kashmir chose to remain independent and remain neutral [1].As a consequence, Jammu and Kashmircame up with an agreement with Pakistan and India saying that no country would attempt to attack Jammu and Kashmir territory. While Pakistan invaded Kashmir in an attempt to forcibly annex it, India observed the pact and showed forbearance. On October 2, 1947, the army of Azad Kashmir, which was composed of 1,000 armed tribesmen and was backed by Pakistan, stormed Kashmir. The Dogra army was unable to repel the army of well-trained tribal invaders. Finally, on October 25, Maharaja Hari Singh issued a letter to India's governor general, Mountbatten, in reaction to the invasion. On October 26, 1947, the monarch of Jammu and Kashmirsigned the document of admission to become a part of Indian domain. After that, an Indian army detachment was sent to guard Kashmir. The statement was supported by the state's citizens, but it was the first formal document governing center-state relations with particular reference to Jammu and Kashmir.
3. INTRODUCTION OF ARTICLE 370:
A Constitution Bench of the Supreme Court upheld the President of India's authority to revoke Article 370 of the Indian Constitution on December 11, 2023, with a majority decision. The former state of Jammu Kashmir was deprived of its unique privileges and split into the Union Territories of Jammu and kashmirand Ladakh as a result of its abrogation in August 2019. According to the supreme court, Article 370 was just a temporary designed to facilitate the former princely state's admission to the Union of India at a period of intense internal conflict and external attack.[2]
3.1 Key feature of the article 370:
The main idea of Article 370 was that the State Legislature had the authority to accept Central legislation by enacting another act, and that the laws approved by the Parliament did not automatically apply to the former State of JK.
Article 370 is a constitutional provision that gave Jammu and Kashmir its special status.
The clause was added to the Constitution's Temporary, Transitional, and Special Provisions section (Part XXI).
The Part's title makes it clear that this was intended to be a transitory provision, and its application was anticipated to end with the creation and ratification of the State's constitution.
It limited the legislative authority of the Parliament over the state of Jammu and Kashmir.
4. TEMPORARY PROVISIONS OF ARTICLE 370 WITH RESPECT TO JAMMU AND KASHMIR
(1) Notwithstanding anything in this Constitution,
(a) The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) The power of Parliament to make laws for the said State shall be limited to
- Those matters in the Union List and the Concurrent Listwhich, inconsultation with the Government of the State, are declared by the President to correspond to mattersspecified in the Instrument of Accessiongoverning the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
- Such other matters in the said Lists as, with theconcurrence of the Government of the State,the President may by order specify Explanation For the purposes of this article, theGovernment of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmiracting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March 1948 ;
(c) The provisions of Article 1 and of this article shall apply in relation to that State;
(d) such of theother provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the Presidentmay by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph 1 of sub clause (b) 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 paragraph 2 of sub clause (b) of clause (1) or in the second proviso to sub clause (d) of that clause be 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 foregoing provisions 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 therecommendation of the Constituent Assembly of the State referred to in clause (2)shall be necessary before the President issues such a notification;[2]
5.THE CONSTITUTION OF JAMMU AND KASHMIR :
The Article 370 which came into effect on October 1949 granted Kashmir to have the autonomy of internal administration, it also allows them to make its own laws in all matters except finance, defence, foreign affairs and communications. So the Indian administered region established a separate constitution and separate flag and denied the property rights in the region to the outsiders.
Some of provisions of the constitution of the Jammu and Kashmir are as follows,
1. (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.
(2) It shall come into force at once, and shall thereuponsupersede the Constitution (Application to Jammu and Kashmir) Order, 1954as amended from time to time.
- All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:-
To article 367, there shall be added the following clause, namely:-
(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir-
(a) References to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to theperson for the time beingrecognized by the President on the recommendation of the Legislative Assembly of the State as theSadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office,shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to theGovernment of the said State shall be construed as including references to the Governor of Jammu and Kashmiracting on the advice of his Council of Ministers; and
(d) in the proviso to clause (3) of Article 370 of this Constitution, the expressionConstituent Assembly of the State referred to in clause (2) shall read Legislative Assembly of the State [3].
6.ARTICLE 35 A
- Further Article 35A a further provision was added to Article 370 in 1954 to empowered state lawmakers to ensure special rights and privileges for permanent residents of the state. persons will be considered as permanent residents if ,The rights are given in the state Constitution of Jammu and Kashmir.[2]
as a person who was a state subject on May 14, 1954
who had been a resident of the state for 10 years
has lawfully acquired immovable property in the state
The state legislature can alter the definition of a permanent residentby passing a law with a two-thirds majority.
Permanent residents are given aPermanent Resident Certificatewhich forms the basis of their rights in the state.
It also has a provision to recognize as permanent residents, people who had migrated to Pakistan and returned, though subject to certain conditions.
However the States constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of Article 370, leaving the status of the provision on a cliffhanger. Subsequent decisions by the Indian Supreme Court and the Jammu and Kashmir High Court established the provision's permanent validity. This suggested that the state government would only need to be "consulted" in order for a central legislation to be applied to it on matters covered by the Instrument of Accession. However, "concurrence" of the state government was required in order to apply a central act to areas other than communications, foreign affairs, and defence.
7. JAMMU AND KASHMIR REORGANISATION BILL, 2019
In the year 2019 the government of Modi, The Rajya Sabha on August 5 passed the resolution to reorganize Jammu and Kashmir. The important points under this bill are as follows,
The state of JK will now be divided into two Union territories by the government. The following are a few of the Bill's provisions:
1. The Kargil and Leh districts of the current JK would be included in the Union Territory of Ladakh. These districts will no longer be a part of JK state as it now exists
2. Jammu and Kashmir, which includes the regions of the current state of Jammu and Kashmir, shall be referred to as the Union Territory of Jammu and Kashmir.
3. The Lieutenant Governor of Jammu and Kashmir and Ladakh shall serve as the state's governor.
4. Four incumbent members of the Council of States representing the existing state of JK shall be assumed to have been elected to fill the seats designated to the UT of JK. The terms of the current members will not change.
5. One seat would be delivered to Ladakh and five seats to JK. In accordance with the seat distribution, the Election Commission of India may hold parliamentary elections in JK and Ladakh.
6. JK shall be subject to the same rules under Article 239A that apply to Puducherry. This suggests that JK will pick an administrator who will have the title of Lieutenant Governor.
7. There will be direct elections to fill the Legislative Assembly in JK. There will be 107 seats available in JK overall.
8. Twenty-four seats in the Legislative Assembly will remain vacant and will not be included when calculating the Assembly's total membership until the portion of the Union Territory of Jammu and Kashmir that is occupied by Pakistan ends and the residents of that area elect their representatives.
9. A Lieutenant Governor shall represent the President in the administration of Ladakh.
10. The President may enact laws to promote Ladakh's prosperity, peace, and efficient administration.
11. Advisors designated by the national government will support the Lieutenant Governor.[4]
7.1 Opinions on the present bill:
"A beacon of hope, a promise of a brighter future, and a testament to our collective resolve to build a stronger, more united India," was how Modi described the verdict.
"The court has strengthened the fundamental unity that we Indians value and treasure above all else, with its great wisdom," he said in a post on X.
Opponents of the government's 2019 decision contended that the Indian Parliament lacked the authority to abolish the special status of the territory and that only the Constituent Assembly of Indian-administered Kashmir could make such a decision.
Omar Abdullah, a former chief minister and vice president of the Jammu Kashmir National Conference party, said on X, "Disappointed but not disheartened." "The fight will go on. The BJP needed decades to get to this point. We're ready for the long haul as well.[5]
8. CONCLUSION:
Both literally and metaphorically, Jammu Kashmir is thecrown of secular India. India, a secular nation, was preferred by its people and authorities to Pakistan. The central-state relations concerning Jammu and Kashmir have experienced notable changes, especially since Article 370 was revoked in 2019. The region's integration with the rest of India has increased as a result of this constitutional amendment, changing the dynamics of administration and governance. Discussions on autonomy, identity, and political representation have been triggered by thisshift. In order to address the many concerns of the people living in the region and promote long-term stability, Jammu and Kashmir will need to adjust to this new paradigm, which will need continuing conversations and inclusive policies. The new doctrine will need to convince the majority of Jammu and Kashmiris that a closer relationship with India will benefit their rights, give them more freedom and space, and offer them more opportunities than alternatives put forth by separatists or other mainstream parties. Moving forward, India need to have faith in the people of JK, implement development that benefits all facets of society, and restore statehood in accordance with the founding declaration.
REFERENCES:
[1] Centre State Relations in Context of Jammu and Kashmir (Legal Service India - Law, Lawyers and Legal Resources) available at: https://www.legalserviceindia.com/legal/article-4653-centre-state-relations-in-context-of-jammu-and-kashmir.html (last visited on 21 January 2024 )
[2] Admin (2023) Article 370 - A Constitutional History of JK, BYJUS. Available at: https://byjus.com/free-ias-prep/article-370/ (last visited on 21 January 2024).
[3] The constitution (application to Jammu and kashmir) order, 2019 C.O. 272: The Administration of Union Territory of Ladakh: India (no date) The Administration of Union Territory of Ladakh | India. Available at: https://ladakh.nic.in/document/the-constitution-application-to-jammu-and-kashmir-order-2019-c-o-272/ (last visited on 21 January 2024).
[4] Standard, B. (no date) What is Jammu and kashmir reorganisation bill: Jammu Kashmir Bifurcation: JK union territory, Business Standard. Available at: https://www.business-standard.com/about/what-is-jammu-kashmir-reorganisation-bill (last visited on 21 January 2024).
[5] Al Jazeera (2023) Whats Article 370? what to know about India top court verdict on Kashmir, Al Jazeera. Available at: https://www.aljazeera.com/news/2023/12/11/whats-article-370-what-to-know-about-india-top-court-verdict-on-kashmir (last visited on 21 January 2024).
