Jammu Kashmir State and Constitutional Anomaly of Article 35A / Constitutional Anomalies

Source: JKSC      Date: 04 Nov 2014 14:28:00


Jammu and Kashmir State of the Union of India, that is Bharat has remained an issue for debates ever since IN OUR CONSTITUENT ASSEMBLY on 26th November 1949 the Constitution of India was adopted and enacted. It has been more since the questions were raised by different classes of people including (i) those who did not own in their hearts the Accession of J&K with India as was done on 26th Oct 1947 ,(ii) those who had extra ambitions nourished in them in view of the mishandling of the affairs of the State and (iii) those who had some alien interests & were interested in controversies. There have also been some extra territorial elements and interests concerning questions and debates on J&K but I shall be focusing only on the issues that have more of immediate internal relevance. To be more brief I shall be discussing here some legal and constitutional aspects of Article 35A of Constitution of India and other constitutional orders & articles of Constitution of India that have significance of immediate relevance.

Some of the anomalies in fact are not atall anomalies but they have taken the shape of ‘anomaly’ since they have not been properly and timely addressed to. Some of the features often quoted by some as anomalies are the result of the unbiased and truthful mindset of the authors of Indian Constitution who would have never thought that their own people would be interpreting the text of the constitution to otherwise choices making use of the simple literal meanings. J&K has a separate constitution like Constitution of India is a well cultivated anomaly, where as the legal position surely is not so. So, even if some misquoted references /questions may not be anomaly in a real sense , but for convenience sake I shall be addressing all questions as “anomalies”… visangateean.

Some people did sense the possible misrepresentations by some in the coming times and hence they objected to some nomenclatures and references like Sadar-e- Riyasat ( why not raj pramukh), State Flag ( description viz National Flag ) and ‘Constitution” of J&K. The generations do have right to correct. In the so often referred Delhi Agreement 1952 it was were clearly said that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India .
CONSTITUTIONAL ANOMALIES
1 .Let us have a look at Article 35 A of Constitution of India. It might have escaped the notice of many constitution of India through a Presidential Order issued under Article -370 of the Constitution of India. THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 was issued saying
that in exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir, is pleased to order … (j) After article 35, the following new article shall be added, namely:— “35A. Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,— (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b)
conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”. It was under this Article that J&K State was allowed to formulate discriminatory laws regarding the residents of J&K as regards the fundamental rights of the Citizens of India.
2. It is often said that J&K Laws are violating the fundamental rights of Indian Citizens since J&K has a Separate Constitution.: No it is not so due to a separate Constitution but is due the fact that J&K State had been allowed by GOI to violate some fundamental rights of Citizens of India and provisions as contained in Articles like Article-16 ( Art- 16.1 There shall be equality of opportunity for all citizens relating to employment or appointment to any office under the State.16.2 No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.16.3 Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment. 16.4 Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State) and Art-19 ( 19.1 All citizens shall have the right(a) to freedom of speech and expression (b) to assemble peaceably and without arms ; (c) to form associations or unions ; (d) to move freely throughout the territory of India ; (e) to reside and settle in any part of the territory of India ;(f) to acquire, hold and dispose of property ; and (g) to practise any profession, or to carry on any occupation, trade or business ) while further defining the existing relationship of the State with the Union of India as an integral part thereof . And the Constituent Assembly incorporated in J&K Constitution the Sections like Section-51 ( candidature for J&K Legislature) , Section- 127 ( employment in J&K government institutions and Section-140 ( voter eligibility for Assembly Elections). This has been done under the Cover of ‘Article-35A’ of constitution of India. In a way the power of Parliament to make laws /Acts under Articles like Article -16 , Article-19 to make special provisions for classes saving the fundamental rights was delegated to J&K Constituent Assembly / J&K Legislature under Art- 35 A of COI. Property rights to Indian Citizens who do not hold PRC of J&K holders has been done in a very concealed manner by referring to existing laws coming from the Maharaja Government.
The anomalies created by amending Article -35 of Indian Constitution by a Presidential order are against the spirit of COI . Adding after article 35, the new Article -35 A is amending the Constitution of India by a Presidential order with the concurrence of State Government and could be seen as unconstitutional since Constitution of India can not be amended by a Presidential order under Article -370 but can be amended only under the provisions and procedure as laid down in Article 368 of COI. It has remained unquestioned over more than 6 decades.
3. It is not only in the case of Article 35-A that the THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 issued in exercise of the powers conferred by clause (1) of Article 370 of the Constitution has trespassed its available Constitutional sanctions , it has been at some more places where it has gone to the extent of Amending the Constitution of India, that could be amended only by Parliament of India under the provisions of Constitution of India as laid in Article- 368 .
Even Article-368 of Constitution of India has been unconstitutionally amended in the said Presidential Order. So strangely the amendments made to Constitution have been concealed from general audit by not mentioning the same in the text of editions of main constitution and the amendments have been mentioned in the Appendix-1 {Constitution ( (application to Jammu and Kashmir ) Order 1954} and the Appendix-II ( Re- statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir ) .The result has been that there may be some people even in the legal profession as well who are not aware of such amendments.

4. Other such amendments that can be quoted for legal scrutiny are :
(i) (2) PART I. To article 3, there shall be added the following further proviso, namely:-
"Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.".…………..
(ii) (3).PART II. (b) To article 7, there shall be added the following further proviso, namely:—
“Provided further that nothing in this article shall apply to a permanent resident of the State of Jammu and Kashmir, who, after having so migrated to the territory now included in Pakistan, returns to the territory of that State under a permit for resettlement in that State or permanent return issued by or under the authority of any law made by the Legislature of that State, and every such person shall be deemed to be a citizen of India.”.…
(iii) (4) PART III. Fundamental Rights. ( right to employment with government)
(c) In clause (3) of article 16, the reference to the State shall be construed as not including a reference to the State of Jammu and Kashmir.
(d) In article 19, …..(iii) the following new clause shall be added, namely:— (7) The words “reasonable restrictions” occurring in clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions
as the appropriate Legislature deems reasonable.’
(iv) (f) In article 31, clauses (3), (4) and (6) shall be omitted; and for clause (5), there shall be substituted the following clause, namely:—
(v) (g) In article 31A, the proviso to clause (1) shall be omitted; and for sub clause (a) of clause (2), the
following sub-clause shall be substituted, namely:— ……..
(j) After article 35, the following new article shall be added, namely:— …. “35A. Saving of laws with respect to permanent residents and their rights.—
(vi) (e) To article 253, the following proviso shall be added, namely:— “Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State.”…………………………………………….
(vi) For article 248, substitute the following article, namely:—
‘248. Residuary powers of legislation.—Parliament has exclusive power to make any law with respect to— (a) prevention of activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any
section of the people or adversely affecting the harmony amongst different sections of the people;]..[prevention of other activities] directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution; and (b) taxes on— (i) foreign travel by sea or air; (ii) inland air travel; (iii) postal articles, including money orders, phonograms and telegrams.”. ….
(vii) Part XX. (vii) Article 368.— (a) in clause (2), add the following further proviso, namely:— “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.”;
( Note : Constitution ( Application to Jammu and Kashmir ) Order -1950 C.O -10 1950 : that was repealed vide
C.O.48 of 1954 to had similar reference ie 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.)
(viii) In article 249, in clause (1), for the words “any matter enumerated in the State List specified in the resolution”, the words “any matter specified in the resolution, being a matter which is not enumerated in the Union List or in the Concurrent List” shall be substituted.]]
(ix) In article 250, for the words “to any of the matters enumerated in the State List”, the words “also to matters not enumerated in the Union List” shall be substituted.
(x) To article 253, the following proviso shall be added, namely:—“Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State.”.
(xi) Article 255 shall be omitted.
(xii) Article 256 shall be re-numbered as clause (1) of that article, and the following new clause shall be added thereto, namely:—
5. Do People of J&K have a dual citizenship ? In this regard nomenclature of Permanent Resident of J&K as defined in Section-6 of J&K Constitution is quoted i. e they are Citizens of India as well as citizens of Jammu and Kashmir. Where as Section- 6 of J&K Constitution itself lays down that (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954- (a) he was a State Subject of Class I or of Class II ; or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date. The Section -6 no where says that J&K people have a citizenship of their own, instead The Permanent resident of J&K is that Citizen of India who meets some local requirements. In case Citizenship of India of a permanent resident of J&K is withdrawn / cancelled by the Union Government the person no where remains a permanent resident of J&K. So, All these years this provision has been quoted and used by some people like as ‘Constitutional Anomaly’ where as it is not. It is not out of place to mention here that the description of PR in Section-6 is the same as it existed since 1927 for State Subjects of Maharaja’s government before 1947 ( people staying in governments of a monarchical or autocratic character.
No person who is not a Permanent Resident of J&K (State Subject of J&K ) can own property in J&K, can obtain job with J&K Government, can join any professional college run by government of J&K due to Article 370 of Constitution of India : It is very much true that such restrictions are there in J&K but these restrictions are neither contained in Article -370 of Constitution of India nor in the Permanent Resident Provision as defined under Section- 6 of the J&K Constitution. In may be a news for some that the term Permanent Resident of J&K was incorporated vide Section-6 of J&K Constitution in 1957 but it appeared in the Constitution application to Jammu & Kashmir order in 1954. One would ask how could it happen. The Constitutional uniformity process had already started and The Jammu and Kashmir Constitution (Amendment) Act, 2011 Samvat ( with the approval of Sadar e Riyasat J&K ) had changed the term State Subject of J&K to Permanent Resident of J&K (Insertion of new part after section 5 :...After section 5 of the Jammu and Kashmir Constitution Act, 1996 - hereinafter referred to as, ' the said Act'- the following new part shall be inserted namely: PART I (A) PERMANENT RESIDENTS 5-A. Every person who is or is deemed to be a citizen of India under the provisions of Part II of the Constitution of India as applied to the State of Jammu and Kashmir under the Constitution (Application to Jammu and Kashmir) Order 1954, shall be a permanent resident of the State of Jammu and Kashmir if at the date of commencement of the Jammu and Kashmir Constitution (Amendment) Act 2011, namely the 1 4th May 1954; (a) he was a State Subject of Class II as defined in the State Subject Notification No. IL/
84 dated 20th April, 1927 read with Notification No. 13/L dated 27th June, 1932, or
(b) after having acquired immovable property in the Jammu and Kashmir State in pursuance of an Ijazat-nama granted under the Ijazatnama Rules for the time being in force, he has been ordinarily resident in the territory of the State for not less than ten years prior to the date of such commencement.).
Such like provisions have been separately incorporated through Section- 51 ( Qualifications for membership of the Legislature.- A person shall not be qualified to be chosen to fill a seat in the Legislature unless he is a Permanent Resident of the State) , Section-127 (Transitional provisions.-Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service or post under the State, shall continue in force so far-as consistent with the provisions of this Constitution. ) . Section- 140 (The elections to the Legislative Assembly shall be on the basis of adult suffrage ; that is to say, every person who is a permanent resident of the State and who is not less than Eighteen years of age on such date …..) of J&K Constitution. More so there is also a Provision for amendment
/ modification to the definition of PR of J&K in Section- 8 and Section -9 of J&K Constitution.

6. It is often quoted that people of J&K have been denied the fundamental rights as provided in Constitution of India ::: No it is not so. As per Section-10 of J&K Constitution all citizens of India who are permanent residents of J&K shall have all the rights guaranteed to them under the Constitution of India.
Be Otherwise, it is not an anomaly and could taken special provisions kept for residents of J&K like the provisions specially created for the SC/ST and some other classes of Indian citizens.
*In Delhi Agreement VI with regard to the fundamental rights, some basic principles agreed between the parties were enunciated; it was accepted that the people of the State were to have fundamental rights. But in the view of the peculiar position in which the State was placed, the whole chapter relating to ‘Fundamental Rights’ of the Indian Constitution could not be made applicable to the State in totality, the question which remained to be determined was whether the chapter on fundamental rights should form a part of the State Constitution or the Constitution of India as applicable to the State. And Section- 10 was finally put in J&K Constitution. **Section - 6 of J&K constitution refers to Citizen of India for being a PR of J&K but denies some fundamental writes to other citizens of India in Sect 51, 127 and 140 of J&K Constitution.
* Property rights to Indian Citizens who do not hold PRC of J&K holders has been done in a very concealed manner by referring to existing laws coming from the Maharaja Government.

7. The mention of Non Application of Article 238 of Constitution of India in Article -370 (1a) has given enough of opportunity to some to think / profess/ plead that J&K is not as good an Indian State as is Punjab or UP -: States in Schedule-1 to Constitution of India as mentioned in Article-1 of Constitution of India had been divided into three classes : those enumerated in Part A of the First Schedule ( Old Governor Provinces of British India ) that were covered under Art 152 to 237 ) , those enumerated in Part B ( Indian Princely States ) that covered under Art238, and those enumerated in Part C ( Chief Commissioner’s Provinces
) that were covered under Art 239 to242 of COI. Part-D had the Territories of Andaman and Nicobar ( Art-243 of COI).

Part – VII of the Constitution of India contained Article 238 as was to apply with exceptions / modifications the provisions contained in Part VI ( The States- Article 152 to 237)of Constitution of India (as applicable to States contained in Part-A of the 1st Schedule of the Constitution ) to Part- B States in the Schedule-1.
The State of J&K was included in Part- B States(1.Hyderabad.2. Jammu and Kashmir. 3. Madhya
Bharat. 4. Mysore. 5. Patiala and East Punjab States Union.6. Rajasthan.7.Saurashtra.8.Travancore- Cochin
.9.Vindhya Pradesh). The process of distribution of legislative and executive functions between the Union Government and the State Governments had not been completed by then and hence Article -238 was kept in
the Constitution to deal with Part –B States that formed the group of Governor Provinces of British India. As regards J&K since the process needed more classified thinking in view of the prevailing circumstances a temporary provision was kept in the shape Art-370 to deal with the issues related to J&K.
Later when the States were reorganized in 1956 (The States Reorganisation Commission (SRC) was constituted by the Central Government of India in 1953 to recommend the reorganization of state boundaries. In 1955, after nearly 2 years of study, the Commission recommended that that India's state boundaries should be reorganized to form 16 states and 3 union territories.States Reorganisation Commission consisted of Fazal Ali, Kavalam Madhava Panikkar and H.N. Kunzru. Some of its recommendations were implemented in the THE CONSTITUTION (SEVENTH AMENDMENT) ACT, 1956 ) The Shedule-1 of Constitution of India was remodeled as States and Union Territories. The States earlier under Article 238 were brought under provisions of Part VI of Constitution of India. As regards J&K the operation was still kept under temporary Article -370. So, it could be well taken that Art-238 not being applicable to J&K did not have negative intentions. The classification of states in parts after reorganisation was undone and thereafter PART VII of the Constitution of India that contained Art-238 was repealed by the Constitution (Seventh Amendment) Act, 1956{ Text Article 238 : The provisions of Part VI shall apply in relation to the States specified in Part B of the First Schedule as they apply in relation to the States specified in Part A of that Schedule subject to the following modifications and omissions, namely ….)

8. Another Mis quoted Anomaly well cultivated is that J&K has two flags /J&K has her own Flag like Indian National Flag. J&K State having its own FLAG is a sign of J&K not being a part of India and demonstrates an extraordinary special status.: No the referred “own Flag” of Indian State of J&K is not a country flag or National Flag of J&K, nor had it been projected and defined like that in the legal documents, in the Constitution of India and not even in the Constitution of Jammu and Kashmir (Section 144 J&K Constitution states : Flag of the State.-The Flag of the State shall be rectangular in shape and red in colour with three equidistant white vertical strips of equal width next to the staff and a white plough in the middle with handle facing the strips ). Those who use this provision as supporting argument to distance J&K from India also rely very much on 1952 Delhi Agreement. Where as in text of 1952 Delhi Agreement too it has been referred as a sign of a local State having participated in freedom struggle and not as a National or Country Flag, Such people hide / ignore the fact that the Delhi Agreement text while referring to this also says >>> it was agreed upon by state government that state flag would not be a rival of National Flag , it was also recognised that the Union Flag should have same position in Jammu and Kashmir as in rest of India, but for historical reasons connected with freedom struggle in the state need for continuation of state flag was recognised. So this can not be used to infer Constitutionally Special (alien) Status for J&K to the extent that it could be carried as a symbol by the Separatists / or as a sign of constitutional immunity by some. More so those who project State Flag as rival to Indian National Flag have over looked the fact the Princely State of J&K also had a State Flag and Maharaja of J&K ( who was an irritant for the British Empire ) too favoured the Indian Independence Movement.
9. Article – 370 of the Constitution of India is mentioned as temporary . But still experts / professors say that Article -370 can not be amended / modified. They base their argument on the plea that “there is no Constituent Assembly” available to make recommendations to President as are necessarily required under Article-370 Clause-3. So this could be called another Constitutional Anomaly. ( Clause (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 ) How fair is this anomaly need be seriously examined.
(i). Article 368 (amendment of Constitution of India ) does not provide any ultimate immunity to Article 370 as regards amending it. Article 370 can be modified / amended/ abrogated as per Constitutional provisions. So far, it has not been amended / abrogated / modified. More so under Article-368 of COI procedure for amendment can also be modified.
(ii)Members of the Constituent Assembly of J&K did not disperse, only the function they were performing ended and the members stayed and functioned there after to work as Legislative Assembly and to handle the legislative affairs of J&K as per Constitution of J&K under the aegis of Constitution of India. The process continued.
(iii) Yuvraj ( Regent ) Karan Singh’s ’s proclamation had in 1951 named the Praja Sabha / Constituent Assembly / Legislative Assembly to be same as far as legislature was concerned. Jammu and Kashmir Constitution (Amendment) Act, 2008 ( Samvat) said “Whereas it is expedient further to amend the Jammu and Kashmir Constitution Act, 1996, with a view to bring it in accord with the spirit of Proclamations dated 5th March 1948, 20th June 1949 and 20th April 1951 and the changes brought about in the actual governance of the State, in the manner hereinafter appearing: \... In Part III of the said Act, for the words “Praja Sabha” wherever they occur the words “Legislative Assembly” shall be substituted…The Legislature of the State shall consist of His Highness and a House to be known as the Legislative Assembly……. Notwithstanding anything contained in this Act, the powers of the Legislative Assembly under this Act shall, until other provision is made by or in accordance with a law made by the Constituent Assembly set up under the Proclamation , be excercisable by the said Constituent Assembly and references in this Act to the Legislative Assembly shall be construed accordingly . … Until rules are made under sub-section (3), the rules of Procedure and standing orders in force in relation to the Praja Sabha shall apply to the Legislative Assembly, subject to such modifications &adaptations as may be made there in by the Speaker of the Legislative Assembly…
iv. That Constituent Assembly is still there in the form of Legislative Assembly of J&K. Yuvraj Karan Singh too had addressed the then Constituent Assembly as Legislative Assembly of J&K in his order dated 09-08-1953 appointing Bakshi Ghulam Mohd as Prime Minister of J&K that said “…... Will you, therefore, make it convenient to meet me immediately so that we might discuss the formation and composition of the new Cabinet. I need hardly impress the continuance in office of the new Cabinet will depend upon its securing a vote of confidence from the Legislative Assembly during its coming session.”
(v) Further if the anti argument is legally correct the Article 370 too should have been got amended same day when the final draft of J&K Constitution was approved and accepted by Constituent Assembly, why was it not ? Constituent assembly did not make any recommendations to President in this regard. Will it be replied for the benefit of the innocent people of J&K who have been mis informed regularly over the years.
(vi) It can not be accepted that procedures for amending the Constitution of India can never be modified / amended . Parliament and State Legislature are there to apply corrections / modifications / additions without overstretching the basic spirits of the Constitution. The Constituent Assembly did have an intrinsic purpose to go by the spirit of intentions behind framing the Constitution as was conceived then but amending the constitution too is like writing a constitution except that while amending the constitution the basic spirits that had formed the basis for framing the Constitution can not be violated by the legislators that followed those who sat in the Constituent Assembly. And the basic purpose and spirit do reflect from what has been said in the Preamble of J&K Constitution ( “We, the people of the State of Jammu and Kashmir, having solemnly resolved, in pursuance of 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 Clause -3 of Article -370 of Constitution of India ( 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.
10. J&K has a separate Constitution and as such J&K enjoys a special status it seems to be a well cultivated anomaly. One should not draw inferences to prove that J&K was given a special status, that, too, special status to such an extent that it enjoyed near ultimate immunity from the jurisdictions of Parliament of India. It could be One’s own understanding but can not be quoted as a Law point. For explanation / argument purpose it could be said that The Constitution of J&K was the “term” used under the circumstances / requirements prevailing at that time for the Subjects that would fall in the “Shadow State List” for J&K. The Constitution of India is the Mother of J&K Constitution. It has been discussed in detail in the fore going chapters. Such opinion holders should rather also have a look in to the objective before the Constituent Assembly as has been mentioned in the 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-……”. So the roots of J&K Constitution lie in Constitution of india and no way J&K has a separate Constitution.In a way it can be said that J&K Constitution is extension of Constitution of India that contains the constitutional leads concerning the subjects that particularly lie within the executive and constitutional jurisdictions of Indian state of J&K.
11. More so it should be again placed for review before the Apex court that (i) how could Article 368 of Constitution of India have such handicapped application to J&K Affairs and in case amendment by way of Clause -4 (No amendment of this Constitution -including the provisions of Part III- made or purporting to have been made under this article [whether before or after the commencement of Section 55 of the Constitution Forty second Amendment Act, 1976 shall be called in question in any court on any ground) and Clause-5 (For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article ) of Art 368 is against the basic spirit of COI , then why is not Art 35A of Constitution of India against the basic structure of Constitution of India since amendment of Article-35A has not been under Article -368 and it is also a blanket violation of fundamental rights of citizens of India. Clauses. (4) and (5) were inserted in article 368 by s. 55 of the Constitution (Forty-second Amendment) Act, 1976. This section has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980) 2 S.C.C. 591.) [ s.55 of Constitution Forty Second Amendment Act 1976 : 55. Amendment of article 368.- In article 368 of the Constitution, after clause (3), the following clauses shall be inserted, namely:- "(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article."]