The State Autonomy Committee: Recommendations

CHAPTER XIV: SUMMARY OF RECOMMENDATIONS

Jammu, April (Excerpts)

1. Temporary, Transitional and Special Provisions (Part X)

1. The word "temporary" is deleted from the title of part X of the Constitution of India and the word "temporary" occurring in the heading of Article 370 be substituted by the word "special".

1. Legislative Relations (Part XI)

1. 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.

2. All modifications made in Article 246 in its application of the State subsequent to the 1950 order should be rescinded.

3. Articles 248, 249, 250 and 251 whether applied in original or substituted/modified form should be omitted from their application to the State.

4. As in 1950 and 1954, List II (State) and List III (Concurrent) of the Seventh Schedule should not be applicable to the State.

5. Article 254 should be restored to the position it had in its application to the State in 1954.

6. Articles 262 and 263 which were not applicable under 1950 Order but were subsequently extended to the State should cease to apply.

1. Elections (Part XV)

Changes brought about in this Part be reversed and consequential changes in other Articles in this Part be effected.

2. Emergency Provisions (Part XVIII)

1. The following should be added to C1.6 of Article 352 in its application to the State:-

"Provided that this request for concurrence of the Government of the State shall be subject to whatever decision the State Assembly may take within two months of declaration of emergency and failing any such decision, the proclamation of emergency shall be deemed to have been revoked."

2. Sub-clause (9b) of C1.6 of this Article should be deleted.

3. Article 355, 356, 357, 358, 359 and 360 should be made non-applicable to the State as was the position in 1954.

1. Fundamental Rights (Part III)

This part should be deleted. A separate chapter on Fundamental Rights be included in the State Constitution.

2. The Union (Part V)

1. 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.

2. Articles 149, 150 and 151 should apply to the State in the form in which they were in 1954.

1. The State (Part VI)

1. Article 218 be omitted in its application to the State and the position as it existed before the Jammu and Kashmir Constitution (First Amendment Act) of 1959 restored.

2. Article 220, 222 and 226 should also be omitted in its application to Jammu and Kashmir State.

1. Finance, Property, Contracts and Suits (Part XII)

The matter may be discussed between the state representatives and the Union Government as agreed to during the talks in 1952 (Delhi Agreement).

2. Services Under the Union and the States (Part XIV)

In Article 312, the brackets and words "including the State of Jammu & Kashmir" inserted by the Constitution (Application to Jammu and Kashmir) Order 1958 be omitted.

3. Special Provisions Relating to Certain Classes (Part XVI)

Application of Articles 338, 339, 340, 341 and 342 to the State should be omitted and corresponding provisions made in the State Constitution.

4. Amendment of the Constitution of India (Part XX)

1. Clause (4) of Article 368 added vide C.O. 101 be deleted.

2. Clause (2) of the Article should apply with the proviso already introduced by 1954 order and clause (1) thereof which was not in existence in 1954 and was introduced in 1971 should remain omitted in its application to the State.

1. Schedules

In the Seventh Schedule, entries in the Union List not applied to the State by the Constitution (Application to Jammu and Kashmir) Order, 1950 should be omitted. Concurrent List which was not applicable to the State in 1950 but was applied by subsequent orders should cease to apply to the State.

2. Changes in the State Constitution

1. Constitution of Jammu and Kashmir (First Amendment) Act, 1959 in so far as they related to superintendence, direction and control of elections to the State Legislature and to the State High Court; and

2. Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965 relating to the 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 the constitution of Jammu and Kashmir restored.

To sum up, the provisions of the Constitution of India specified in the Second Schedule and the matters specified in the First Schedule to the Constitution (Application to Jammu and Kashmir) 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. 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 cease to apply.

Also the changes made in the State Constitution vide Constitution of Jammu and Kashmir (First Amendment) Act, 1959 and Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965 be repealed and the original provisions of the Constitution of Jammu and Kashmir as adopted by the State Constitution Assembly on November 17, 1956 be restored.

CHAPTER XV: SAFEGUARDS FOR FUTURE

In the preceding chapters, we have discussed in detail the extent to which erosion was caused to the State autonomy from time and also suggested remedial measures. That completes the job assigned to us by first item of the terms of reference. There are, however, two other items which require our consideration. The first is to ensure the "inviolability" of the final settlement, and the other is to keep in mind the need to maintain "harmonious" relations with the Centre.

A suggestion has been made that Article 258 should be invoked for entrusting to the State "functions in relation to any matter to which the executive power of the Union extends". This would put a seal on the record of the past. "Functions" so "entrusted" can always be recalled back. The issue is not one of executive "functions" but legislative "powers" apportioned the Instrument of Accession in 1947 and the Delhi Agreement of 1952 to which the President's Order of May 14, 1954 gave constitutional sanction besides, of course, Article 370 itself. To them must we return if popular sentiment is to be respected and resentments assuaged. It is first and foremost a moral issue. It also has important constitutional and political aspects. In the nature of things, redress can only be through another compact between the Union and the State. Once the basic principles are agreed, there will be discussion on procedure. Forty year of unconstitutional practice has created a mess. The best course is for the President to repeal all orders which are not in conformity with Constitution (Application to Jammu and Kashmir) Order, 1950 and the terms of the Delhi Agreement of 1952.

Ever since Article 370 has acquired a dangerously ambiguous aspect. Designed to protect the State's autonomy, it has been used systematically to destroy it. A compact is necessary between the Union and the State which makes ample redress and finalizes their relationship by declaring a "Constitutional Understanding" that Article 370 of the Constitution of India beyond the ones extended under the new 1950 Order and the Delhi Agreement, 1952. This could be embodied in new Article that specifies the Agreement as part of the unamendable basis structure of the Indian Constitution.

Such constitutional understandings have been formulated in other democracies. The complexities of the situation render it the best, perhaps the only, course for removing the debris of an unhappy past and building in its place, a relationship between the State of Jammu and Kashmir and the Union of India which reflect the most vital aspect of federalism -- mutual trust and respect.