`Centre shall have control only on Defence, Foreign and Communication' Autonomy Committee recommends restoration of pre-52 situation Article 370 be made a special provision instead of temporary Revival of nomenclature for head of State, executive suggested.
JAMMU: The State Autonomy Committee has unanimously recommended the restoration of 1952 Delhi Agreement in Jammu and Kashmir under which the Centre would have no control over the State excepting three subjects of Defence, External Affairs and Communications. The Committee has also suggested that Article 370, which grants special status to the State, be made a "special provision" instead of "temporary provision" which exists in the Constitution at present.
The Committee, whose report was tabled in the Legislative Assembly on April 13 and circulated to legislators and media men today, has also recommended changes in the Constitution for changing the nomenclature of the Head of the State and State Executive, mode of appointment of Head of the State and other consequential amendments, superintendence, direction and control of elections to the State legislature and State High Court. It called for deletion of almost all laws made applicable to the State after 1953 including Article 356 of the Constitution, which empowers Centre to dismiss a State Government.
The Autonomy Committee, which was rendered an "all National Conference affair" following the resignation of former Union Minister Dr Karan Singh as its Chairman, is unanimous in its recommendations. The report has been signed by all nine members including Ghulam Mohi-ud-Din Shah, Chairman (who had replaced Dr Karan Singh after his resignation), Mr Abdul Ahad Vakil, Speaker of the Assembly, Mr Abdul Rahim Rather, Mr P L Handoo, Mr Bodh Raj Bali and Moulvi Iftikhar Hussain Ansari, all Cabinet Ministers in the Farooq Government, Mr Kushok Thiksay, Mirza Abdul Rashid and Sardar Teja Singh, member-convener.
The Committee has recommended that matters in the Union list not connected with the three subjects of Defence, External Affairs and Communications and/ or Ancillary thereto but made applicable should be excluded from their application to the State. All modifications ,made in Article 246 in its application to the State subsequent to 1950 order should be rescinded, it said.
According to the Committee report Article 248, 249, 250 and 251 whether applied in original or substituted/modified form should be omitted from their application to the State, Article 254 should be restored to the position it had in its application to the State in 1954 and Article 262 and 263, which were not applicable under 1950 Order but were subsequently extended to the State, should cease to apply. As in 1950 and 1954, List II (State) and List III (Concurrent) of the Seventh Schedule shouldn't be applicable to the State.
Favouring conversion of "temporary provision" of Article 370, applied to J&K, as "special provision", the report said the word `temporary' be deleted from the title of part XXI of the Constitution of India and the word `temporary' occurring in the heading of Article 370 be substituted by the word `special'.
Elaborating on Article 370, the report said the word `temporary' has been issued in the title of Part XXI and heading of Article 370 of the Constitution of India. This was because of the provision contained in Clause (3) of this Article which came into being at a time when the Constituent Assembly of the State was yet to be convened. This Article could cease to be operative if the President of the Republic were to issue a notification to this effect on the basis of a recommendation of the State Constituent Assembly.
"So it should have been indicated as early as 1956 that it would be a misnomer to call Article 370 a `temporary provision'. In fact it had then become and had to continue as a special provision of the Indian Constitution applicable to J&K.
The Committee said all amendments in the Constitution of Jammu and Kashmir made vide Constitution of Jammu and Kashmir (First Amendment) Act, 1959 in so far as they relate to superintendence, directions and control of elections to State Legislature and to the State High Court and Constitution of J&K (Sixth Amendment) Act, 1965 relating to change of nomenclature of the Head of the State and State Executive, mode of appointment of the Head of the State and other consequential amendments should be repealed and the original provisions of Constitution of J&K be restored. It may be recalled that prior to 1952, the Chief Minister of J&K was designated as `Prime Minister' and Governor as `Sadar-e-Riyasat'.
"The provisions of the Constitution of India specified in Second Schedule and the matters specified in the first Schedule to the Constitution (Application to J&K) Order, 1950 and the matters agreed to by the representatives of the State and the Union vide Delhi Agreement of 1952 should continue to apply to the State subject to the same exceptions and modifications as are specified in the said Order and the Delhi Agreement", the reports said.
It said :"all orders issued thereafter under Clause (1) of Article 370 of the Constitution of India by the President, applying various provisions and matters of the Constitution of India to the State, whether in full or in modified form or making any change in the provisions or matters already applied by 1950 Order or agreed to under Delhi Agreement, should be rescinded and the provisions or matters so applied to the State should cease to apply".
Also, it said, the changes made in the State Constitution vide Constitution of J&K (First Amendment) Act, 1959 and Constitution of J&K (Sixth Amendment) Act, 1965 be repealed and the original provisions of the Constitution of J&K as adopted by the State Constituent Assembly on November 17, 1956 be restored.
The Committee recommended that Article 356, under which the Centre could dismiss the State Government, should be made non-applicable to the State as was the position in 1954. Besides Article 356, it also recommended that Article 355, 357, 358, 359 and 360 should also be made non-applicable to the State. It said Part III of Fundamental Rights should be deleted and a separate chapter on Fundamental Rights be included in the State Constitution.
Referring to extended jurisdiction of the Supreme Court over matters in regard to J&K, the Autonomy Committee observed :"normally, there can be no dispute now with the extended jurisdiction of Supreme Court over matters regarding to J&K, but it had got to be recorded that this aspect of State-Union relationship was not settled at the time of Delhi Agreement of 1952 and after the events of 1953 quick decisions were forced upon the flawed Constituent Assembly followed by a number of Constitution (Application to J&K) orders".
"The position which ultimately has emerged is that J&K has been accorded the same status as the rest of the States except for the above form of Article 133 and 134 applied to the State. The State had at that time a High Court whose judgements were subject to appeal/review before His Highness, advised in his judicial functions by a Board of Judicial Advisors consisting of eminent jurists/knowledgeable persons. That has not to be and re-opening that chapter may not sound appropriate now except, of course, where adopting of provisions of the Union judiciary for the State have in a way infringed upon the corresponding provisions of the State Constitution in regard to State High Court", it said and recommended that Article 72 (1) (c), 72 (3), 133, 134, 135, 136, 138, 145 (1) (c) and 151 (2) should be made non-applicable to the State as was the position in 1950 Order.
Besides, Article 149, 150 and 151 should apply to the State in the form in which they were in 1954. Article 218 be omitted in its application to the State and the position as it existed before the J&K Constitution (First Amendment Act) of 1959 restored. Article 220, 222 and 226 should also be omitted in their application to Jammu and Kashmir.
Regarding finance, property, contracts and Suits, the report said the matter be discussed between the State representatives and the Union Government as agreed to during the talks in 1952 Delhi Agreement.
On Services under Union and the States, it said in Article 312 the words "including State of Jammu and Kashmir" inserted by the Constitution (Application to J&K) Order 1958 be omitted.
Elaborating on the aspect of services, the report said "notwithstanding seemingly an attractive proposition one can say without any fear of contradiction that it has dwarfed local talent and made it difficult for local youth to aspire to compete for key civil posts on competitive basis. The weak-kneed attempt to organise Kashmir
Civil Services is neither here nor there and increasing inflow of All India Services has meant pretty little in the field for which the services were apparently conceived.
"Ever since the application of these provisions of the Indian Constitution to our State, the number of direct recruits from the State has been negligible. The problem has attained so unpleasant a shape even in the national context that demands of greater number of promotees from local services all over the country have assumed alarming proportions", it said.
The Committee said the Indian Constitution has restricted the power of the State legislature to amend its own Constitution. This uncalled for clog on the constituent powers of State legislature needs to be removed lock, stock and barrel. As such, it recommended that Clause (4) of Article 368 added vide C.O. 101 be deleted, Clause (2) of Article 368 should apply with the proviso already introduced by 1954 Order and Clause (i) thereof which was not in existence in 1954 and was introduced in 1971 should remain omitted in its application to the State.
The Committee recommended that entries in the Union list, which were applied to the State by 1950 Application Order should continue and all other entries made applicable to the State by subsequent orders should be omitted. The concurrent list was not applicable under 1950 Order and it was also agreed in the Delhi Agreement that this should not apply to the State. hence all subsequent orders applying various entries from this list should be rescinded.
It recommended that consistent with the requisite changes as many become necessary consequent upon change in the Article of the Constitution of India in their application to J&K as a result of this report be effected in the Schedules concerned.
It also suggested that application of Article 338, 339, 340, 341 and 342 to the State should be omitted and the corresponding provisions made in the State Constitution.
Regarding Amendment of the Constitution of India, the report said Clause (4) of Article 368 added vide C.O. 101 be deleted and Clause (2) of the Article should apply with the proviso already introduced by 1954 order and Clause (i) thereof which was not in existence in 1954 and was introduced in 1971 should remain omitted in its application to the State. In the Seventh Schedule entries in the Union List not applied to the State by the Constitution (Application to J&K) Order, 1950 should be omitted. Concurrent List, which was not applicable to the state in 1950 but was applied by subsequent order, should cease to apply to the State.
Referring to elections, the report said, since elections to the State legislature are held under laws made by the State Legislature, Article 324 should continue to apply in the manner and the way it was applicable in 1950/1954 order. This is particularly so when the State Constitution had provisions relating thereto. The change brought about in this Part after 1954 be reversed and consequential changes in other Article in this Part be effected, it recommended.
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