CHAPTER - VI

THE CONSTITUTION OF JAMMU AND KASHMIR

1 INTRODUCTION

Jammu and Kashmir is a Constituent State of the Indian Union but its
Constitutional position and its relation with the Central Government somewhat differs
from that of the other States. 1 One of the most important characteristics of Article 370 is
that it recognized the fact that a separate Constituent Assembly for the purpose of
framing the Constitution of the State of Jammu and Kashmir would be convened. The
need for convening of the constituent Assembly for the State of Jammu and Kashmir
was not only intensely felt for framing the Constitution for Jammu and Kashmir but it
was the Assembly only representing the will of the people of the State, which had the
power to finally determine the sphere of the Union jurisdiction over the State.

2 CONSTITUENT ASSEMBLY OF THE STATE OF JAMMU AND

KASHMIR

The establishment of the Jammu and Kashmir Constituent Assembly in

September 1951 was an event off great significance in the political history of the State.2
The Constituent Assembly met on 31st October, 1951. 3 It started its work on November
5, 1951 at Srinagar. 4 It was equipped with the power to frame the Constitution for the
State. One of the senior most members Maulana Masoodi was appointed the protem
Chairman of the Assembly. 5 The next day Gulam Mohamad Sadiq was elected the

1
M.P. Jain, Indian Constitutional Law 854 (6th Ed., revised by Ruma Pal et.al. 2012)
2
A.S. Anand, The Constitution of Jammu and Kashmir-Its Development and Comments 187 (2010).
3
Government of Jammu and Kashmir, Report of the State Autonomy Committee 42 (2000).
4
Supra note 2.
5
K.K. Wadhwa, Constitutional Autonomy-A Case Study of Jammu and Kashmir 32 (2001).

181
President of the Assembly. 6 It was inaugurated with a historical speech of the Prime
Minister of the State Sheikh Mohammed Abdullah. 7

The task off Constitution making entered a decisive phase when in the 12th
session of the Constituent Assembly, held from September 29, 1956 to November 19,
1956, the drafting committee on October 10, 1956 presented the draft Constitution8
which after detailed discussions was finally adopted on 17th November, 1956 and given
effect to from January 26, 1957.

The Constitution of Jammu and Kashmir is a written document having 158

Sections divided into thirteen parts. There are seven schedules attached to it. The State
of Jammu and Kashmir thus acquired the distinction of having a separate Constitution
for the administration of the State in place of the provisions of Part VI of the
Constitution of India which governs all other States of the Union. 9 Before 26th January
1957, the internal government of the State even after its accession, was governed by the
Jammu and Kashmir Constitution Act, 1939. 10

3 THE CONSTITUTION OF JAMMU AND KASHMIR, 1957

The Constitution of Jammu and Kashmir is in no way repugnant to the

Constitution of India but it is complementary to it. The hallmark of the present
Constitution is a complete change from the past monarchical form of government to a
parliamentary form of government. It is partly rigid and partly flexible. Unlike other
states of India, the State of Jammu and Kashmir enjoys special powers and privileges on
account of having its own Constitution. As Jammu and Kashmir is governed by two sets
of Constitutional provisions – the Constitution of India as applicable, subject to certain
omission and modifications, by the Constitution (Application to Jammu and Kashmir)
Order, 1954 11 and the Constitution of Jammu and Kashmir 1957, a study off those

6
M.K. Teng, Kashmir-Article 370 88 (2002).
7
Supra note 2.
8
Ibid.
9
Available at: http://indiankanoon.org/doc/1977650
10
Act XIV of Samwat 1996 (A.D. 1939)
11
C.O. 48, published with the Ministry of Law Notification No. S.R.O. 1610, dated the 14th May, 1954.
Gazette of India (Extraordinary), Part II, Section 3, p. 821.

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provisions of Constitution of Jammu and Kashmir 1957, a study of those provision of
Constitution of Jammu and Kashmir which explain the relationship between the State
and Indian Union is indeed essential so as to understand fully the extent of autonomy
enjoyed by the State vis-à-vis Indian Union. The important provisions of the State
Constitution which are related with relations of the State with the Union and which
reveal a clear account of extent of State autonomy enjoyed by the State of Jammu and
Kashmir as a constituent part of India Union are as follows:

1) The most important feature of the preamble to the Constitution of Jammu and
Kashmir is that it accepts the fact of accession of the State of Jammu and
Kashmir to Union of India. One of the objectives of the Preamble to the State
Constitution is “to further define the existing relationship of the State with
Union of India as an integral part thereof…”
2) Sections 1,2,3,4,5,6,7,8 and 158 came into force on 17th November, 1956 and
the remaining Sections came into force on 26th January, 1957 which day is
referred to in this Constitution as the commencement of this Constitution. That
the people of Kashmir have chosen January 26, the Republic Day of India, as the
date for full enforcement of their constitution is evidence of the emotional
integration of the State with the rest of India. 12
3) Section 3 declares that the State of Jammu and Kashmir is and shall be an
integral part of the Union of India. To further strengthen the relationship of the
State with the Union, the Constituent Assembly has put this Section beyond the
amending power of the Legislature of Jammu and Kashmir. 13
4) The territory of the State of Jammu and Kashmir shall comprise of all the
territories which on the fifteenth day of August, 1947, were under the
sovereignty or suzerainty of the Ruler of the State. 14 It means the territory of the
State of Jammu and Kashmir also includes the area which has been illegally
occupied by Pakistan as it was the whole area of the State which had acceded to
Indian Union. Whereas Indian Constitution defines the territory of Jammu and

12
Supra note 2 at 193.
13
The Constitution of Jammu and Kashmir, Section 147.
14
Id., Sec. 5.

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 Kashmir as the territory which immediately before the commencement of this
Constitution was comprised in the Indian State of Jammu and Kashmir. 15 As the
State of Jammu and Kashmir is a constituent Unit of India, The territory of the
State of Jammu and Kashmir as defined in State Constitution automatically
becomes part of Indian Union. The importance of the provisions relating to the
State territory can be assessed from the fact that Section 4 of the States
Constitution is immune from amendment. 16
5) The State Constitution provides that the executive and legislative power of the
State extends to all matters except those with respect to which the parliament
has the power to make laws for the State under the Provisions of the
Constitution of India. 17 The Constitution (Application to Jammu and Kashmir)
Order 1954, as amended from time-to-time, applies to a number of entries of the
Union List and the Concurrent List to Jammu and Kashmir. Section 5 is merely
confined to matters over which the State Legislature can legislate. 18 This Section
has also been put beyond the amending power of the State legislature. 19
6) The Constitution of the State defines the term ‘Permanent residents’ 20 It states:
1. Every person who is, or is deemed to be, a citizen of India under the
provisions of the Constitution of India shall be a permanent resident
of the State, if on the fourteenth day of May, 1954:
(a) He was a State subject of Class I or the Class II; or
(b) Having lawfully acquired immovable property in the State, he has
been ordinarily resident in the State for not less than ten years prior
to the date.
2. Any person who, before the fourteenth day of May, 1954, was a State
Subject of Class I or of Class II and who having migrated after the
first day of March, 1947, to the territory now included in Pakistan
returns to the State under a permit for resettlement in the State or for

15
See Art. 1, Sch. 1, The Constitution of India.
16
Supra note 13.
17
Id., sec.-5
18
S. Mubarik Shah Naqashbandi v. I.T.O., AIR 1971 J&K 120.
19
Supra note 13.
20
Id., sec. 6.

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 permanent return issued by or under the authority of any law made
by the State Legislature shall on such return be a permanent resident
of the State.
3. In this Section, the expression “State Subject of Class I or of Class
II” shall have the same meaning as the [State Notification No. 1-L 84
dated the twentieth April, 1927, read with State Notification No. 13L
dated on the twenty-seventh June, 1932].

The Section 8 of the State Constitution gives the State Legislature the right to define
permanent residents while Section 9 permits the State Legislature to alter the definition
of the classes of persons who are or shall be permanent residents to make provisions
conferring any special rights or privileges on them and to regulate or modify such
special rights and privileges as enjoyed by permanent residents.

The provisions relating to Permanent Residents read with Article 35-A as

applied to the State of Jammu and Kashmir by the Constitution (Application to Jammu
and Kashmir) Order 1954 is the most striking feature of the Constitution of Jammu and
Kashmir. The State Legislature of Jammu and Kashmir by law, can confer special rights
and privileges on the permanent residents of the State and such law shall be valid
notwithstanding that it is inconsistent with the fundamental rights, conferred by the
Constitution of India, upon the other citizens of India. Thus, persons who are not
‘Permanent Resident’s are:

(i) not entitled to purchase immovable property,

(ii) denied employment with the State Government,
(iii) disqualified from being a member of a Village Panchayat under Section 6(a)
of the Panchayati Raj Act, 1989, 21
(iv) denied State Government scholarships and
(v) not eligible to vote 22 in or contest elections 23 of the State legislature due to
the reason that State legislature enjoys special rights to define Permanent

21
Arvind Lavakare, The Truth About Article 370 62 (2005).
22
Supra note 13, sec. 140.
23
Supra note 13, sec. 51.

185
 Residents of Jammu and Kashmir, the Parliament’s power to regulate the
rights of citizenship by law under Article 11 of the Constitution of India
extends to the State of Jammu and Kashmir subject of course, to the
provisions of the Constitution of Jammu and Kashmir. 24
(vi) The Constitution of Jammu and Kashmir provides that the permanent
residents of the State shall have all the rights guaranteed to them under the
Constitution of India. 25 The Constitution of Jammu and Kashmir is
restrictive to the extend that it stipulates the availability of the fundamental
rights only to the permanent residents of the State leaving out the citizens of
India who are not the permanent residents of Jammu and Kashmir.
Therefore, the fundamental rights envisaged by the Constitution of India are
not conferred on the “non-permanent residents” of the State by Section 10 of
the State Constitution but by the Constitution of India as it is applicable to
the State by virtue of the Constitution (Application to Jammu and Kashmir)
order, 1954 as amended from time-to-time.
(vii) Prior to the Constitution of Jammu and Kashmir (Sixth Amendment) Act.,
1965 the Head of the State was designated as the Sadar-i-Riyasat and the
requirement of law was that he should be a person who for the time being is
recognized by the President as such and no person could be so recognized
unless he is a permanent resident of the State of Jammu and Kashmir and has
been elected as Sadar-i-Riyasat by a majority of the total membership of the
State Legislative Assembly. After the Constitution of Jammu and Kashmir
(Sixth Amendment) Act, 1965 the nomenclature of the head of the State has
been changed to ‘Governor’ 26 and he is appointed by the president by
warrant under his hand and seal after the Constitution of Jammu and
Kashmir (Sixth Amendment) Act, 1965 the requirement of to be a permanent
resident of State for being eligible for appointment as Governor has been

24
Supra note, 2 at 215.
25
Supra note 13, sec. 10.
26
Supra note 13, sec. 26.

186
 removed and now qualification for appointment of Governor is that he
should be a citizen of India and has completed the age of thirty years. 27
(viii) The clause (2) of Section 26 of the State Constitution states:

(2) The executive power of the State shall be vested in the Governor and
shall be exercised by him either directly or through officers subordinate to
him in accordance with this Constitution.

In this connection ‘ministers have been held 28 to be officers subordinate’.

The State Legislature can, however vest the executive functions in
authorities other than the Governor also. 29

(ix) One of the important characteristics of the Jammu and Kashmir Constitution
is that all functions of the Governor except those under Sections 36, 38 and
92 shall be exercised by him only on the advice of the Council of
Ministers. 30 The Governor of the State appoints the Chief Minister 31 at his
discretion and the remaining ministers at the advice of the Chief Minister.32
The discretionary power of the Governor may not seem important if there is
a party in the legislature which has an overall majority and whose leader
enjoys its confidence, but it becomes important in a situation where there is
no such party and a coalition government is essential. 33 It will then be for the
Governor to consider what coalitions are possible and choose those which
are most likely to endure. 34

The Governor is not bound by the advice of the Council of

Ministers while appointing from amongst the members of either House

27
Id., sec. 29.
28
Tara Singh v. State, AIR 1958 PB 302.
29
Supra note 13, sec. 26(3).
30
id., sec.35(2)
31
Substituted for ‘Prime Minister’ by the Constitution of Jammu and Kashmir (Sixth Amendment) Act,
1965, Section 2.
32
Supra note 13, sec. 36.
33
Supra note 2 at 236.
34
Ibid.

187
 of Legislature such number of Deputy Ministers as may be necessary. 35
The Governor is also not bound by the advice of the council of Ministers
while issuing a proclamation for introduction of “Governor’s Rule” in
the case of breakdown of Constitutional Machinery in the State of
Jammu and Kashmir. 36

(x) Section 38 of the State Constitution has been amended by the Constitution of
Jammu and Kashmir (Thirtieth Amendment) Act., 2006 which states that the
total number of Ministers including the Chief Minister and the Deputy
Ministers shall not exceed twenty per cent of the total membership of the
State Legislature. The State of Jammu and Kashmir is being exempted from
the Constitution (Ninety-first Amendment) Act, 2003 37 which, applies to
other States of Indian Union limiting the total number of Ministers,
including the Chief Minister, in the Council of Ministers to fifteen percent of
the total number of members of the Legislature Assembly of that State. 38
(xi) The Ministers of the State of Jammu and Kashmir hold office during the
pleasure of the Governor of the State. 39
(xii) There shall be a Legislature for the State which shall consist of the Governor
and two Houses to be known respectively as the Legislative Assembly and
the Legislative Council. 40
(xiii) The Legislature Assembly shall consists of 41 [One hundred and eleven]
members chosen by direct election from territorial constituencies in the State
provided that the Governor may if he is of opinion that women are not
adequately represented in Assembly, nominate not more than two women to
be members thereof. 42 But until the area of the State under occupation of
Pakistan ceases to be so occupied and the people residing in that area elect

35
Supra note 13, sec. 38.
36
Id., sec. 92.
37
The Constitution (Ninety-first Amendment) Act, 2003 came into force on Jan. 1, 2004.
38
The Constitution of India, art. 164 (1A)
39
Supra note 13, sec. 39.
40
Id. sec. 46.
41
Subs. By the Constitution of Jammu and Kashmir (Twentieth Amendment) Act, 1987.
42
Sec. 47, Constitution of Jammu and Kashmir.

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 their representative, 43 [twenty four seats) in the Legislative Assembly shall
remain vacant and shall not be taken into account for reckoning the total
membership of the Assembly. 44 The Legislative Council shall consist of
thirty-six members. 45
(xiv) One of the qualifications for a person to be chosen to fill a seat in the State
Legislature is that he should be permanent resident of the State of Jammu
and Kashmir. 46 It means a citizen of India who is not a permanent resident of
the State cannot contest elections for the State Legislature of Jammu and
Kashmir.
(xv) The duration of the Legislative Assembly of the State is 47 [six years] from
the date appointed for its first meeting. 48 If a Proclamation of Emergency
issued under Article 352 of the Constitution of India is in operation in the
State of Jammu and Kashmir, then the duration of the Legislative Assembly
may be extended by the State Legislature by law for a period not exceeding
one year at a time and not extending in any case beyond a period of six
months after the proclamation has ceased to operate. 49
If this situation is compared with other States of Indian Union then the
power to extend the life of Legislative Assembly of the State during the
proclamation of emergency resides with the Union Parliament and not with
concerned State Legislature. 50
Section 52(2) of the State Constitution provides for continuity in the life of
Legislative Council by providing the one-third of its members shall retire on
the expiration of every second year in accordance with the provisions made

43
Subs. by the Constitution of Jammu and Kashmir (Twelfth Amendment) Act, 1975 (w.e.f. 17.09.1975).
44
Supra note 13, sec. 48.
45
Id. sec. 50.
46
Id. sec. 51.
47
The duration of all the State Legislatures of Union was increased to six years by the Constitution
(Forty-second Amendment) Act., 1976. So, a corresponding change was made in Section 52 of the
Constitution of Jammu and Kashmir by the Constitution of Jammu and Kashmir (Sixteenth Amendment)
Act, 1977. Later on, the Constitution (Forty fourth Amendment) Act, 1978 restored the duration of the
State Assemblies to five years but the State Constitution was not amended. Therefore, the duration of
State Legislature continues to be six years.
48
Id. sec. 52.
49
Ibid. Proviso to cl. (1).
50
Supra note 38, proviso to cl. (1) of art. 172.

189
 in that behalf by State Legislature by law. Whereas, in other States of Indian
Union where Legislative Council exists, one-third of its members shall retire
on the expiration of every second year in accordance with the provisions
made in that behalf by Parliament by law. 51
(xvi) One of the striking features of the State Constitution is the power of
Governor to issue a proclamation in case he is satisfied that the Government
of the State cannot be carried on in accordance with the provisions of the
Constitution of Jammu and Kashmir. 52 Section 92 (1) of the Constitution of
Jammu and Kashmir enacts:

The Governor may by Proclamation 53

(a) assume to himself all or any of the functions of the Government

of the State and all or any of the powers vested in or exercisable
by anybody or authority in the State;
(b) make such incidental and consequential provisions as appear to
the Governor to be necessary or desirable for giving effect to the
objects of the proclamation, including provisions for suspending
in whole or in part the operation of any provision of this
Constitution relating to any body or authority in the State:
Provided that nothing in this Section shall authorise the Governor
to assume to himself any of the powers vested in or exercisable
by the High Court or to suspend in whole or in part the operation
of any provision of this Constitution relating to the High Court.
The proclamation issued by Governor may be revoked or varied
by a subsequent proclamation. 54 The life span of any such
proclamation shall, except where it is a proclamation revoking a
previous proclamation, be six months from the date on which it
was first issued. 55
The power of Governor to issue proclamation is very important
as he is empowered by the state Constitution to exercise this
power in his own discretion without depending on the advice of
his Council of Ministers. 56 But the power of the Governor to

51
Ibid. Cl. (2) of art. 172.
52
Supra note 13, sec. 92 (1).
53
Ibid.
54
Id. Cl. (2) of sec. 92.
55
Id., Cl. (3) of sec. 92.
56
Id., sec. 35(2).

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 issue proclamation is subject to a limitation that no proclamation
under sub-Section (1) of Section 92 shall be issued except with
the concurrence of the President of India. 57
(xvii) The State of Jammu and Kashmir may make provision for the reservation of
appointments or posts in favour of any class of permanent residents which is
in the opinion of the Government is not adequately represented in the
services under the State and State can do it without consulting Public Service
Commission as respect the manner in which such a provision may be made
by State of Jammu and Kashmir. 58
(xviii) The superintendence, direction and control of the preparation of the electoral
rolls for, and the conduct of, elections to either House of the State
Legislature held under State Constitution shall vest in the Election
Commission of India. 59 Thus, the elections to the State legislature are to be
conducted by the Election Commission of India according to the
Constitution of Jammu and Kashmir and the electoral laws made by the State
Legislature. The power of State Legislature to make provision with respect
to elections to Legislature of Jammu and Kashmir has been given under
Section 141 of the Constitution of Jammu and Kashmir. It is in contrast with
the position prevailing in other States where the elections to the State
Assemblies are held in accordance with the laws made by the Parliament.
(xix) Only the permanent residents of the State can exercise right to vote in the
elections to the Legislative Assembly of the State. 60 It means a person who
is not a permanent resident of a State cannot exercise voting rights.
(xx) The Constitution of the State of Jammu and Kashmir provides a separate
Flag for the State. No other State of Indian Union possesses its own flag
Section 144 of the Constitution of Jammu and Kashmir states:
The Flag of the State shall be rectangular in shape and red in
colour with three equidistant white vertical stripes of equal width
next to the staff and a white plough in the middle with the handle
facing the stripes.

57
Id., sec. 92 (5).
58
Id. sec. 133 (3).
59
Id. sec. 138.
60
Id. sec. 145.

191
 The ratio of the length of the flag to its width shall be 3:2.
(xxi) The official language of the State shall be Urdu but the English language
shall unless the Legislature by law otherwise provides, continue to be used
for all the official purposes of the State for which it was being used
immediately before the commencement of this Constitution. 61 Thus, the
directive for the development of the Hindi language 62 does not apply to the
State of Jammu and Kashmir.
(xxii) The provisions of Article 368 of the Constitution of India are not applicable
for the amendment of the State Constitution of Jammu and Kashmir. 63 While
an Act of Parliament is required for the amendment of any of the provisions
of the Constitution of India, the Constitution of Jammu and Kashmir may be
amended by introducing a Bill in the Legislative Assembly of the State and
Bill is required to be passed in the House by a majority of not less than two-
third of the total membership of that House and at last assented to by the
Governor of that State. 64 But no Bill or amendment seeking to make any
change in –
a. this Section; or
b. the provisions of Sections 3 and 5; or
c. the provisions of the Constitution of India as applicable in relation to the
State,

Shall be introduced or moved in either House of the Legislature. 65

Thus, this Section imposes limitations on the amending power of the Legislature
of Jammu and Kashmir. The State Legislature is not competent to amend Section 147.
Moreover, the Legislature of State cannot amend Section 3 which declares Jammu and
Kashmir as an integral part of the Union of India. Since no change can be made in the
extent of the executive and legislative power of the Union with regard to the State
except with the concurrence of both the Governments, Section 5, dealing with the extent

61
Id. sec. 145.
62
Supra note 38, art. 351.
63
Supra note 9.
64
Supra note 13, sec. 147.
65
Ibid.

192
of legislative and executive power of the State, has also been put beyond the amending
powers of the legislature. 66

The amending power of the Legislature of Jammu and Kashmir does not
include the power to amend the provisions of the Constitution of India as
applicable in relation to the State of Jammu and Kashmir. Thus, the
amending power of the State Legislature shall be confined to the provisions
of the State Constitution and shall not affect any provisions of the
Constitution of India. 67

The objective behind imposing the limitations on the amending power of the
State Legislature of Jammu and Kashmir is to keep immune the sanctity of
Constitutional relationship existing between Indian Union and State of
Jammu and Kashmir.

(xxiii) One of the interesting characteristics of the State Constitution is, the
comprehensive and radically progressive list of the directives which are
modelled on some of the basic rights and obligations enumerated in “New
Kashmir” programme as well as part IV of the Indian Constitution. 68 The
Part IV 69 of the Constitution of India is not applicable to the State as State of
Jammu and Kashmir has its own set of directive principles of State policy
given in Part IV of the State Constitution. 70

4 CONCLUSIVE APPRAISAL

The State of Jammu and Kashmir constitutes a special category as it is the only
State of Indian Union which have its own Constitution and the flag. It enjoys a
considerable internal sovereignty as a distinctive variation of Indian Federal system.
There is no parallel to it in the Indian federal polity in regard to quantum of autonomy

66
Supra note 2 at 196.
67
Maqbool v. State of Jammu and Kashmir A.I.R. 1972 S.C. 963.
68
Vidhya Bhushan, Jammu and Kashmir Politics: Its Critical Aspects 282 (2008).
69
Part IV of the Constitution of India deals with directive principles of State policy.
70
Supra note 13, sec. 11-sec. 25.

193
enjoyed by it. The federal relation between the Union and the State of Jammu and
Kashmir respects “State rights” more than in case of other States of Union.

*****

194