Article 35A of the Constitution of India and question of Permanent Residents of the State

Article 35A, incorporated in the Constitution by a 1954 Presidential Order, confers special status to the permanent residents of Jammu and Kashmir, and bars people from outside the state from acquiring any immovable property in the state.Continue Reading

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CONSTITUTION OF JAMMU AND KASHMIR

Jammu and Kashmir

CONSTITUTION OF JAMMU AND KASHMIR 1956[ Read PDF]

Preamble:-

WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves

JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and’ worship;
EQUALITY of status and of opportunity; and to promote among us all ;
FRATERNITY assuring the dignity of the individual and the unity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

PART II
THE STATE

3. Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India.

4. Territory of the State:-The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.

5. Extent of executive and legislative power of the State:- The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.

COMMENT 

Jammu and Kashmir is  the integral part of India, has been ratified by the Constitution of J & K through Preamble and through Sections 3 and 5. Again it is provided in Section 147, that the  Constitution of J & K is not competent to indulge in deliberation with Article 370 of INDIAN CONSTITUTION. Article 370 is Temporary in nature , and could be deleted by notification of President of India without the permission of the Constitution of J & K, or legislative body of the State or any Constitution Assembly of the state. After 1956 the Constitution Assembly became functus officio and ceased to exist as like Constitution Assembly of India. Therefore, the proviso “Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification ” had lost it`s force long ago. Had it be the case that the President was issuing a notice before 1956 , then and only then  the Proviso could had had  it`s effect , otherwise the recommendation of the Constitution assemble is not necessary. Not having a Constitution assembly now could not make the provision absolutely immune from deletion .

370. Temporary provisions with respect to the State of Jammu and Kashmir ( OF INDIAN CONSTITUTION)

(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-(i)those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing 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(ii)such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation.–For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s 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 the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by orderspecify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) 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 (ii) 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 the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

147. Amendment of the Constitution ( J & K CONSTITUTION)

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in the Legislative Assembly and when the Bill is passed in each House by a majority of not less than two thirds of the total membership of that House, it shall be presented to the Sadar-i-Riyasat for his assent and, upon such assent being given, to, the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that a Bill providing for the abolition of the Legislative Council may be introduced in the Legislative Assembly and passed by it by a majority of the total membership of Assembly and by a majority of not less them two-thirds of the members of the Assembly present and voting:

Provided further that 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.


CONTENTS
Preamble

PART I
PRELIMINARY
1. Short title and commencement
2. Definitions
PART II
THE STATE
3. Relationship of the State with the Union of India
4. Territory of the State
5. Extent of executive and legislative powers of the State
PART III
PERMANENT RESIDENTS
6. Permanent residents
7. Construction of references to State Subjects in existing laws
8. Legislature to define permanent residents
9. Special provisions for bills relating to permanent residents
10. Rights of the permanent residents 5
PART IV
DIRECTIVE PRINCIPLES OF STATE POLICY
11. Definitions
12. Application of the principles contained in this Part
13. State to establish a socialist order of society
for the promotion of welfare of the people
14. Economy of the State to be developed in a planned manner
15. State to ensure speedy improvement in standard of living of rural masses
16. Organisation of Village Panchayats
17. State to take certain steps for promoting crafts and cottage industries
18. Separation of judiciary from executive
19. Right to work and .to public assistance in certain cases
20. Rights of free and compulsory education in certain cases
21. Rights of Children
22. Rights of Women
23. Protection of educational, material and cultural interests of socially and economically backward sections
24. Duty of the State to improve public health
25. Duty of the State to foster equality and secularism
PART V
THE EXECUTIVE THE GOVERNOR
26. Head of the State
27. Appointment of Governor
28. Term of office
29. Qualifications for appointment as Governor
30. Conditions of office
31. Oath of Office
32. Omitted
33. Discharge of the functions of the Governor in certain contingencies;
34. Power to grant pardons; reprieves etc.
The Council of Ministers
35. Council of Ministers to aid and advise the Governor
36. Appointment of Ministers
37. Minister’s responsibility to the Legislature
38. Deputy Ministers
39. Tenure of office
40. Oath of office and secrecy
41. Salaries and allowances of Ministers and Deputy Ministers
The Advocate General
42. Advocate General for the State Conduct of Government Business
43. Rules of Business
44. Duties of Chief Minister
45. Form of orders and instruments and their authentication
PART VI
THE STATE LEGISLATURE
Composition of the State Legislature
46. Legislature for the State
47. Composition of Legislative Assembly
48. Provision relating to Pakistan occupied territory .
48. A Holding of general election in the event of earl.ier dissolution of Legislative Assembly
49. Reservation’ of seats for Scheduled Castes
50. Composition of Legislative Councit General Provisions
51. Qualification of membership of the Legislature .
52. Duration of Legislature
53. Sessions of the Legislature, prorogation and dissolution
54. Right of Governor to address and send messages to the House or Houses .
55. Special address by the Governor
56. Rights of Ministers and Advocate General as respects the Houses’ Officers of the State Legislature
57. The Speaker and Deputy Speaker of the Legislative Assembly
58. Vacation and resignation of, and removal from the offices of the Speaker and Deputy Speaker
59. Power of the Deputy Speaker or ether person to perform the duties of the office of or to act as Speaker
60.The Speaker and the Deputy Speaker not to preside while a resolution for his removal from office is under consideration
61. The. Chairman and Deputy Chairman of the Legislative Council
62. Salaries and Allowances of the Speaker and Deputy Speaker and the Chairman and the Deputy Chairman
63. Secretariat of the Legislature
Conduct of Business
64. Oath or affirmation by members
65. Quorum
66. Power of Houses to act notwithstanding vacancies
67. Voting in the Houses
Disqualifications of Members
68. Vacation of sears
69. Disqualification for, membership
70. Decision on questions or to disqualification of members.
71. Penalty for sitting and voting before making oath or affirmation when not qualified or when disqualified
Powers, Privileges and Immunities of the State Legislature and Its members
72. Powers, privileges etc. of the Houses of Legislature and of the members and committees thereof
73. Salaries and allowances of members Legislative Procedure
74. Provisions as to introduction and passing of Bills
75. Restriction on powers of Legislative Council as to Bills other than Money Bills
76. Special Procedure In respect of Money Bills
77. Definition of “Money Bills”
78. Assent to Bills Procedure In Financial Matters
79. Annual Financial Statement
80. Procedure In Legislature with respect to estimates
81. Appropriation Bills
82. Supplementary, additional or excess ‘grants
83. Votes on account, votes of credit and exceptional grants
84. Special provisions as to Financial Bills Procedure Generally
85. Rules of procedure
86. Regulation by law of procedure in the legislature in relation to financial business
87. Language to be used in the Legislature 41
88. Restriction on discussion in the Legislature
89. Courts not to inquire into proceeding of the Legislature
90. Requirements as to recommendations regarded as matters of procedure only’ Legislative power of the Governor
91. Power of Governor to promulgate Ordinances during recess of Legislature Breakdown of Constitutional Machinery
92. Provisions in case of failure of Constitutional Machinery in the State
PART VII
THE HIGH COURT
93. Constitution of High Court
94. High Court to be a Court of Record
95. Appointment and tenure of office of Judges
96. Qualifications for appointment
97. Oath or affirmation by Judges of the High Court
98. Salaries etc. of Judges
99. Resignation or removal of a Judge of High Court
100. Appointment of acting Judges
100-A Appointment of additional and acting Judges
100-B Appointment of retired Judges’ at sitting of the High Court
101. Place of sitting of the Court
102. Saving of existing jurisdiction of the High Court
103. Power to Issue certain writs
104. Superintendence and control of subordinate courts
105. Transfer of cases to High Court
106. Omitted
107. Seal
108. Officer’s and servants of the High Court
Subordinate Courts
109. Appointment of District Judges
109-A Validation of postings and transfers of, and judgments etc. delivered by certain District Judges
110. Recruitment of persons other than District Judges to the Judicial Service
111. Control over subordinate courts
112. Interpretation
113. Application of the provisions of this Part to certain class or classes of Magistrates
PART VIII
FINANCE, PROPERTY AND CONTRACTS
114. Taxes not to be imposed save by authority of law
115. Consolidated Fund and Public Account
116. Contingency Fund
117. Expenditure defrayable by the State out of its revenue
118. Custody, etc.,of Consolidated Fund, Contingency Fund and moneys credited to the public account.
119. Custody of suitors deposit and other money received by public servants and courts.
120. Property accruing by escheat or lapse or as bona vacantia
121. Power to carry on trade etc.
122. Contracts
123. Suits and proceedings
Part IX
THE PUBLIC SERVICES
124. Recruitment and conditions of service of persons serving the State
125 Tenure of office of persons serving the State
126. Dismissal, reduction or removal of persons Employed in civil capacities under the State
127. Transitional provisions
The Public Service Commission
128 Public Service Commission for the State .
129. Appointment and term of office of members
130. Removal and suspension of a member of the Commission
131. Power to make regulations as to conditions of service of members and staff of theCommission
132. Prohibition as to the holding of offices by members of the Commission on ceasing to
be such members
133. Functions of the Commission
134. Acting appointment of Chairman of the Commission
135. Power to extend functions of the Commission
136. Expenses of the Commission
137. Reports of the Commission
PART X
ELECTIONS
138. Superintendence, direction and control of elections
139. No person to be ineligible for inclusion in electoral roll on grounds of religion, race, castes or sex
140. Elections to the Legislative Assembly to be on the basis of adult suffrage
141. Power of Legislature to make provision with respect to elections to Legislature
142. Bar to interference by Courts in electoral matters
PART XI
MISCELLANEOUS PROVISIONS
143. Protection of Governor
144. Flag of the State
145. Official language of the State
146. Academy for development of Art, Culture and Languages
PART XII
AMENDMENT OF THE CONSTITUTION
147. Amendment of the Constitution
PART XII
TRANSITIONAL PROVISIONS
148-152 Omitted
153. Provisions as to Judges of High Court
154. Courts, authorities and officers to continue to function subject to the provisions of the Constitution
155. Money received or raised or expenditure incurred between the commencement of
the Constitution and the 31st day of March, 1957
156. Power of Sadar-i-Riyasat to remove difficulties
157. Repeal and saving of laws and rules
158. Interpretation
SCHEDULES
First Schedule … Omitted
Second Schedule… Emoluments, Allowances and Privileges of the Governor
Third Schedule … Salaries and allowances of the Speaker and Deputy Speaker of the Legislative Assembly and the Chairman and the Deputy Chairman of the Legislative Council
Fourth Schedule … Salaries, allowances and other conditions of service of the Judges of the High Court.
Fifth Schedule … Forms of Oaths or affirmations
Sixth Schedule … Regional Languages
Seventh Schedule … Provision as to disqualification on ground of . . . defections
Appendix …