Kashmir Special Status: Myth and Reality
Prof. Noor Ahmad Baba

The word autonomy sounds big and impressive. But the closer examination will reveal that even the undiluted autonomy that the state of Jammu & Kashmir enjoyed prior to 1953 had nothing more than that all the 50 states that constitute the Unites States of America enjoy under their common constitution. In its eroded form today for all practical purposes the state, in terms of the exercise of powers, is at par with any other state of the Indian union. Under the instrument of accession, the powers with regard to only Defense, External Affairs and Communication were transferred to the dominion government. The interim government of the state that was formed under the leadership of Sheikh Abdullah in October 1947 tried its utmost to secure and safeguard the special position for the state. He was able to get it incorporated into the legal and constitutional framework of Indian Union. In effect, this meant that no laws passed by the Parliament, except those relating to only 36 of the 97 items in the union list would be enforceable in the Jammu and Kashmir state. The Parliament was not to have any residuary legislative jurisdiction in respect of the state. And parliament’s Laws on concurrent List would not apply to state except with its own concurrence. In fact, nine out of the twenty two parts of the constitution were totally inapplicable to Jammu And Kashmir State

Therefore, to regulate the political structure, the Jammu and Kashmir state was to evolve its own constitution. Accordingly, a constituent assembly was formed in the state in 1951. The assembly was assigned the task of framing of a Constitution for the state within the framework of special position it was enjoying. The position was further illustrated by Delhi Agreement reached in 1952 between the state leadership and the union government. Accordingly the constituent assembly prepared the draft of the Constitution which was adopted in November 1956. The political events of 1953, that led union government to remove Sheikh Abdullah, the most potent advocate of the State’s autonomy from the political scene, started casting their shadow on the autonomy of the state. The reference in this regard may be made to Presidential Order of 1954 under which the Preamble and Part I,II and III of the Indian Constitution were made applicable to the state with certain modifications. Part V of the Constitution was made applicable in its totality and Part XI and bulk of the Part XII and XIII were also extended to it. Significantly Supreme Court’s jurisdiction was also extended to the state. Further custom duties that were hitherto levied by the state were abolished.

The substantial part of autonomy that Jammu and Kashmir originally enjoyed was eroded by the puppet governments that were installed in Kashmir after 1953 to 1975, with active connivance of the government of India. The Presidential Order of 1954, referred to above, was first move in this regard. The Presidential Order of 26th.February, 1958 carried the process further by extending the jurisdiction of the comptroller and Auditor General of India to the state of Jammu and Kashmir. It also made Part XII, XIII and XIV of the Indian Constitution applicable to state in their totality. In addition administrative service of the state were leavened with Indian Administrative and Police Services. By a subsequent order the authority of the Election Commissioner and the special leave jurisdiction of the Supreme Court were also extended to the state. The judges of the Jammu and Kashmir High Court were now to be appointed by the President of India. Besides, the Jammu and Kashmir representatives for Lok Sabha were henceforth to be directly elected by the people of the state and not by the State Legislative Assembly as was the previous practice. Further, the title of the Head of the state i.e., Sadar-i-Riyasat was designated as Governor of the state and Prime Minister of the state as Chief Minister as they were referred in other states of Indian union. Therefore, for all practical purposes the state, in its relationship with the centre and in terms of the machinery of governance is same as in any other state of the Indian union.