White Paper on Indian States (1950)/Part 11/Special Provisions regarding the State of Jammu and Kashmir
Special provisions regarding the State of Jammu and Kashmir.
221. The State of Jammu and Kashmir acceded to India on October 26, 1947. The form of the Instrument of Accession executed by the Ruler of the State is the same as that of the Instruments executed by the Rulers of other acceding States. Legally and constitutionally therefore the position of this State is the same as that of the other acceding States. The Government of India, no doubt, stand committed to the position that the accession of this State is subject to confirmation by the people of the State. This, however, does not detract from the legal fact of accession. The State has therefore been included in Part B States. In view of the special problems arising in respect of this State and the fact that the Government of India have assured its people that they would themselves finally determine their political future, the following special provision has been made in the Constitution:
"370. (1) Notwithstanding anything in this Constitution.
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;
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) or in the second proviso to sub-clause (d) of clause (1) 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, decalre 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."
The effect of this provision is that the State of Jammu and Kashmir, continues to be a part of India. It is a unit of the Indian Union and the Union Parliament will have jurisdiction to make laws for this State on matters specified either in the Instrument of Accession or by later additions with the concurrence of the Government of the State. An order has been issued under Article 370 specifying (1) the matters in respect of which the Parliament may make laws for the Jammu and Kashmir State and (2) the provisions, other than Article 1 and Article 370, which shall apply to that State (Appendix LVI). Steps will be taken for the purpose of convening a Constituent Assembly which will go into these matters in detail and when it comes to a decision on them, it will make a recommendation to the President who will either abrogate Article 370 or direct that it shall apply with such modifications and exceptions as he may specify.
APPENDIX LVI
THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1950
In exercise of the powers conferred by clause (1) of article 370 of the Constitution of India, the President, in consultation with the Government of the State of Jammu and Kashmir, is pleased to make the following Order, namely:—
- This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 1950.
- It shall come into force at once.
- For the purposes of sub-clause (b) (i) of clause (1) of article 370 of the Constitution, the matters specified in the First Schedule to this Order, being matters in the Union List, are hereby declared to correspond to matters specified in the Instrument of Accession governing the accession of the State of Jammu and Kashmir to the Dominion of India as the matters with regard to which the Dominion Legislature may make laws for that State; and accordingly, the power of Parliament to make laws for that State shall be limited to the matters specified in the said First Schedule.
- In addition to the provisions of article 1 and article 370 of the Constitution, the only other provisions of the Constitution which shall apply in relation to the State of Jammu and Kashmir shall be those specified in the Second Schedule to this Order, and shall so apply subject to the exceptions and modifications specified in the said Schedule.
THE FIRST SCHEDULE
(See paragraph 2)
[Note.—The number of each entry in this Schedule is the number of the corresponding entry in the Union List.]
- Defence of India and every part thereof including preparation for defence.
- Naval, military and air forces; and other armed forces of the Union.
- Delimitation of cantonment areas, local self-government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas.
- Naval, military and air force works.
- Arms, firearms, ammunition and explosives
- Atomic energy for the purpose of defence and mineral resources necessary for its production.
- Preventive detention for reasons connected with Defence, Foreign Affairs or the security of India.
- Foreign Affairs; all matters which bring the Union into relation with any foreign country.
- Diplomatic, consular and trade representation.
- United Nations Organisation.
- Participation in international conferences, associations and other bodies and implementing of decisions made thereat.
- Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
- War and peace.
- Foreign jurisdiction
- Naturalisation and aliens.
- Extradition.
- Admission into, and emigration and expulsion from, India; passports and visas.
- Pilgrimages to places outside India.
- Piracies and crimes committed on the high seas or in the air; offences against the law of nations committed on land or on the high seas or in the air.
- Railways, but as respects any railway owned by the State of Jammu and Kashmir, and either operated by that State or operated on its behalf otherwise than in accordance with a contract with the State by the Government of India, limited to the regulation thereof in respect of safety, maximum and minimum rates and fares, station and service terminal charges, inter-change of traffic and the responsibility of the railway administration as carriers of goods and passengers, and as respects any railway which is wholly situate within the State and does not form a continuous line of communication with a railway owned by the Government of India, whether of the same guage or not, limited to the regulation thereof in respect of safety and the responsibility of the railway administration as carriers of goods and passengers.
- Maritime shipping and navigation, including shipping and navigation on tidal waters; provision of education and training for the mercantile marine and regulation of such education and training provided by States and other agencies.
- Lighthouses, including lightships, beacons and other provision for the safety of shipping and aircraft.
- Ports declared by or under law made by Parliament or existing law to be major ports, including their delimitation, and the constitution and powers of port authorities therein.
- Port quarantine, including hospitals connected therewith; seamen's and marine hospitals.
- Airways, aircraft and air navigation; provision of aerodromes; regulation and organisation of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies.
- Carriage of passengers and goods by railway, sea or air.
- Posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication.
- Trade and commerce with foreign countries.
- Elections to Parliament, and the offices of President and Vice-President; the Election Commission.
- Salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the Council of States, and the Speaker and Deputy Speaker of the House of the People.
- Powers, privileges and immunities of each House of Parliament and of the members and the committees of each House; enforcement of attendance of persons for giving evidence or producing documents before committee of Parliament or commissions appointed by Parliament.
- Salaries and allowances of the Ministers for the Union; the salaries, allowances, and rights in respect of leave of absence and other conditions of service of the Comptroller and Auditor-General.
- Audit of the accounts of the Union.
- Constitution and organisation of the Supreme Court, and the feed taken therein; persons entitled to practise before the Supreme Court.
- Extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.
- Offences against laws with respect to any of the matters aforesaid.
- Inquiries and statistics for the purpose of any of the matters aforesaid.
- Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters aforesaid, but, except with the consent of the State Government, not so as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in, or in relation to, the State; admiralty jurisdiction.
- Fees in respect of any of the matters aforesaid, but not including fees taken in any court.
THE SECOND SCHEDULE
(See paragraph 3)
| Provisions of the Constitution applicable | Exceptions | Modifications |
| Part V • • • | Articles 72(1)(c), 72(3), 133, 134, 135, 136, 138, 145(1)(c) and 151(2). | (1) Articles 80 and 81 shall apply subject to the modification that the representatives of the State in the Council of States and the House of the People, respectively, shall be chosen by the President in consultation with the Government of the State. (2) Articles 149 and 150 shall apply subject to the modification that the references therein to the State shall be construed as not including the State of Jammu and Kashmir. |
| Part XI • • • | Articles 247 to 252 clauses (3) and (4) of article 257 and articles 260, 262 and 263. | (1) Clause (1) of article 246 shall apply subject to the provisions of paragraph 2 of this Order, and clauses (2) and (3) of article 246 shall not apply in relation to the State. (2) Clause (1) of article 259 shall apply subject to the modification that after the words "until Parliament by law otherwise provides", the words "and the concurrence of the State to such law has been obtained" shall be deemed to be inserted. |
| Part XII • • • | Articles 264 and 265, clause (2) of article 267, articles 268 to 281, clause (2) of article 283, articles 286 to 291, 293, 295, 296, and 297. | (1) Article 266 shall apply only in so far as it relates to the Consolidated Fund of India and the public account of India. (2) Articles 282 and 284 shall apply only in so far as they relate to the Union or the public account of India. (3) Articles 298, 299 and 300 shall apply only in so far as they relate to the Union or the Government of India. |
| Part XV • • • | Articles 325 to 329. | Article 324 shall apply only in so far as it relates to elections to Parliament and to the offices of the President and Vice-President. |
| Part XVI • • • | Articles, 332, 333, and 337 to 342. | (1) Article 330 shall apply only in so far as it relates to seats reserved for Scheduled Castes. (2) Article 334 shall apply only in so far as it relates to the House of the People. (3) Article 335 shall apply only in so far as it relates to the Union. |
| Part XVII • • • | Nil • • • | The provisions of this Part shall apply only in so far as they relate to the official language of the Union and to proceedings in the Supreme Court. |
| Part XIX • • • | Articles 362, 363 and 365. | (1) Article 361 shall apply only in so far wait relates to the President. (2) Article 364 shall apply only in so far as it relates to the laws made by Parliament. |
| Part XX • • • | Nil • • • | Article 368 shall apply subject to the additional proviso: "Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370."
|
| Part XXI • • • | Articles 369, 371 and 373, clause (4) of article 374, articles 376 and 378 and clause (2) of article 388. | (1) In clause (3) of article 379 after the words "Minister for any such State", the words "other than the State of Jammu and Kashmir" shall be deemed to be inserted. (2) Article 389 shall apply only in so far as it relates to Bills pending in the Dominion Legislature. (3) Article 390 shall apply only in so far as it relates to the Consolidated Fund of India. |
| Part XXII • • • | Nil • • • | Nil |
| First Schedule • • | Nil • • • | Nil |
| Second Schedule • • | Paragraph 6 • • | Nil |
| Third Schedule • • | Forms V, VI, VII and VIII. | Nil |
| Fourth Schedule • • | Nil • • • | Nil |
| Eighth Schedule • • | Nil • • • | Nil |
RAJENDRA PRASAD,
President.
K. V. K. SUNDARAM,