Does J&K Constitution Exist? Grey Areas in New Arrangement

K B Jandial
In the renewed constitutional arrangement that fully integrated J&K with rest of India and bifurcated the erstwhile Dogra princely state of Jammu & Kashmir created about 175 years ago by an iconic Maharaja Gulab Singh into two Union Territories, some issues remained unclear leading to assumption and varied interpretation of old and new provisions. One such important matter left unexpressed, explicitly & implicitly, is the status of the Constitution of Jammu & Kashmir in the new constitutional dispensation.
State Constitution is widely perceived to be non-existent and said to be rendered infructuous after application in full Indian Constitution to J&K like any other State of India. This view is further strengthened by PM Modi’s I-Day address to the nation from the ramparts of Red Fort when he asserted that India is “one nation, one constitution”. But the text of the new article370 doesn’t support it.
New article 370 says that “All provisions of the Constitution …. shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308… of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment….. or otherwise.” The reference to the provision of the Constitution of Jammu and Kashmir clearly confirms that the Constitution of Jammu and Kashmir continues to remain on the statute book & exists. Doesn’t J&K Constitution, at least in theory, still co-exist along with Indian Constitution? It if was not so, where was the need to mention “any other provision of the Constitution of Jammu and Kashmir” in the redrafted article 370. Resultantly the effect is that if there any repugnancy between the constitution of India and the Constitution of J&K, the former shall prevail. Its most appropriate example is of the provisions of “state subject” law figuring in J&K Constitution (sections 6 to 9) that are now redundant being violative of the Part 111of Indian Constitution relating to fundamental rights. Moreover, the constitutional safeguard available to this discriminatory law against legal challenge under article 35A doesn’t exist.

Straight Talk
Another misperception is on the status of State Flag. It became part of State Constitution (Sec144) following Delhi Agreement of 1952 which provided a “Flag of the State”. Like fate of J&K Constitution, there is no explicit removal of this provision. But since the “State of Jammu & Kashmir” will cease to exist on 31st October, 2019 how can the State Flag survive. So are other provisions specific to the “State of Jammu & Kashmir” including State emblem.
Interestingly, even this redrafted article 370 has again been placed in Part XXI of the Constitution with unchanged tittle “Temporary, Transitional and Special Provisions” that justified its total change recently by Modi Govt. The only difference would be that any further change in Article 370 shall be effected through the route of Parliament under article 368.

While there is no confusion on the supremacy of the sovereignty of the Constitution of India over the Constitution of J&K, even if continues to exist, the provisions of the Reorganisation Act too have overriding effect on all other laws. Section 102 says that its provisions shall prevail over any of other law inconsistent to it. Moreover, almost like article 370, section 103 of this Act empowers the President to remove any difficulty in giving effects to the provisions of the Act by issuing order if he finds it necessary or expedient but not after five years.
There are some grey areas in the Reorganisation Act which seek answers or at least clarity. One such area is the oath of Chief Justice and Judges of the J&K High Court. They take oath that is prescribed in J&K Constitution (Fifth Schedule) which is “… solemnly affirm that I will bear true faith and allegiance to the Constitution of the State…” while the Judges of other High Courts take oath expressing “allegiance to the Constitution of India.” The CJ & Judges, on transfer to other High Courts, take fresh oath of Constitution of India. But the Reorganisation Act is silent on it and only states (sec 75) that there will be a common High Court for J&K and Ladakh UTs and the Judges “immediately before the appointed date shall become on that day the Judges of the common High Court.” Will they now be required to take oath of Indian Constitution?
Another important feature of the Act is the retention of the provision of Advocate General, a constitutional position available in the States. No other UT has this luxury. The J&K Court Fee Act of Samvat 1977 has been repealed without extending any Central Law on the subject.
J&K will be the only UT in the country to have its Public Service Commission which the Constitution of India provides only for the States. Moreover, the tenure of the Chairman / Member of PSC under Constitution of India is six years until he attains the age of 62 {( Article 316 (2) }whereas under J&K Constitution it is five years or 65 age whichever is earlier. However, Section93 (4) of the Reorganisation Act provides the protection to the Chairman & Members against change of service conditions by incorporating a provision that they will be entitled to “conditions of service not less favourable than those to which he was entitled under the provisions applicable to him.” However the new appointee will be under Constitution of India.
As for Ladakh, the UPSC will take care of it needs. The UPSC makes recruitments for non-All India Services as part of Civil Services Examination (DANICS). It covers UTs of NCT of Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli &Chandigarh. They form a feeder cadre of IAS. Other subordinate recruitments are made by their respective recruitment agency. How would KAS recruitment figure in this new scheme of things is to be seen.
Interestingly, while the J&K Accountability Commission Act 2002 (one of 153 State laws) has been repealed but the Central Lokpal and Lokayukta Act 2013 has not been extended. There are 166 State laws including Governor’s Acts that shall remain in force in new UTs.
The most confusing part is the provisions of Assembly constituencies and their delimitation. The third Schedule of the Act listed out 83 Constituencies of Kashmir and Jammu, as UT, after deleting four seat of Ladakh. Section 14 (3) says that “the total number of seats in the Legislative Assembly of the Union Territory of J&K to be filled by persons by direct election shall be 107” with effective number of seats remaining at 83 as mentioned in the schedule (24 seats continued to be kept vacant for people of PoK till the area is vacated). But Section 60 (1) increased the seats to 114 with reference year for the “latest census figures” shifted from 2001 to 2011. Compounding the confusion, section 63 provides that, “Notwithstanding anything contained in sections 59 to 61, untill the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust the division of successor Union territory of Jammu and Kashmir into Assembly and Parliamentary constituencies…” In view of the expression “Notwithstanding anything contained in sections 59 to 61” (that includes Sec 60) does it mean that the delimitation of increased seven seats will have to wait for 2031 census or it is meant for subsequent increase in seats? But the “disempowered” UT Assembly doesn’t appear to have power to increase seats at its own.
The J&K State Evacuees (Administration of Property) Act has been retained without amendment that Has created concern of PoK refugees and other allottees who are lawfully occupying EP property including land for decades and had spent huge money on their maintenance, but they continue to be deprived of any rights over these. This could have been done by making such rights subject to the lien of the original owners who had migrated to PoK or Pakistan during Independence. Greater concern is on extension of the ST & other Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, sections 3 &4 of which vest host of rights to such ‘forest dwellers’ and are protected against eviction. This Act is much more serious than the decision of the meeting of Tribal Ministry chaired by then Chief Minister Mehbooba Mufti against eviction of such occupants from the forest areas that had created huge embarrassment to BJP.
While the new article 370 has come into force on 6th August, the Jammu and Kashmir Reorganisation Act, 2019 shall be effective on a specially chosen date of 31st October, 2019 to coincide with the birthday anniversary of Sardar Patel who integrated nearly 500 princely states into India. Intriguingly, on his birthday the State of J&K will be ‘disintegrated’ and divided into two UTs to meet specific objectives. While the objective for making Ladakh an UT, ostensibly is to meet the development needs and aspirations of sparsely populated difficult terrain, making of J&K as UT is to effectively deal with cross border terrorism which Kashmir political leadership was found unequal to the task in the past.
But still the people of Jammu have full faith in PM Modi’s commitment in restoring the Statehood after ‘rooting out’ terrorism from Kashmir and restoring peace and harmony. All stake holders including civil society & compatible political parties should make a common cause for justice, always deprived both by Kashmir leadership and the Centre. But this cannot be a reason to create problems for the Centre in dealing with the situation in Kashmir arising out of “abrogation” of controversial Article 370. Jammu as always would stand by the Central Govt in the larger national interest.
Pending realisation of the longstanding political aspiration, PM Modi should consider options to end discrimination to Jammu: set up two Statutory Regional Autonomous Council s for Kashmir and Jammu with recruitment on regional basis to end lopsided recruitment and development. Separate benches of Public Service Commission at Kashmir and Jammu with the Chairman moving Jammu & Srinagar as per requirement for recruitment of UT cadre of non-All India Services would be one of the solutions to finally address Jammu’s grievance on this count.