Centre State Relations in context of Jammu and Kashmir
The constitution of India is federal in nature providing both the union and the
state have to function within their jurisdiction but the State of Jammu and
Kashmir on the contrary was not governed by this general scheme of federalism,
rather a different path of federal relation by way of Article 370 was
established.
This paper provides insight of relation between the Indian Union and the State of Jammu and Kashmir by outlining the gradual constitutional integration of J&k State to Centre, from accession to India in 1947 to application of the Indian constitution and its necessity. It shows how the Center-state relation concerning legislative, administrative, financial relation changed after the abrogation of Article 370. The paper highlights the mechanism for managing Center-state relations with specific reference to Jammu and Kashmir.
Introduction
It is rightly said: Federalism isn't about states' rights. It's about dividing power to better protect individual liberty. It can be said from the above saying that the federalism is not only limited to powers distribution but is combination of, the scheme of the distribution of powers and fundamental rights A federal constitution establishes a dual polity with the Centre and states, each need to exercise in the fields assigned to them.
The legislative, executive and not by any by any law passed by the Centre but by the constitution itself[i]. The Indian constitution provides for a new type of federalism particularly needed for the new Indian system, though the Indian model of federalism has been different from existing classic models but the essence of the federal constitution remained a division of powers between State and Centre.
Jammu and Kashmir stands out as the only state in India which is governed by this scheme of federalism, due to special circumstances under which the state assessed in Indian union. The centre and state of Jammu and Kashmir was arrived at an objective considered what ought to be belong to which legislature was decided based upon article 370 of the constitution of india by instruments of accession.
Historical Aspect
The initiation of the relation between the Indian union and the state of Jammu and Kashmir can be traced from the event when India and Pakistan gained their independence on the 14th and 15th of august 1947, respectively. Where many of the Muslim majority areas in the Western and Eastern parts joined Pakistan but J&K was an exception and decided to stay neutral on the grounds and choose to remain independent.
Thus, resulted in the creation of an agreement by j&k with India and Pakistan stating that neither nation will try to invade the territory of J&K. While India respected the agreement and exercised restraint, Pakistan attacked Kashmir to annex it by force. on 02 October 1947, Kashmir was attacked by Azad Kashmir forces which included a thousand tribesmen armed which were supported by Pakistan and the Dogra army failed to stop the large trained tribal invaders army, On 25th October, in response to invasion Maharaja Hari Singh, at last, wrote a letter to Mountbatten, the governor-general of India.
I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistance of your Government. As your Excellency is aware the State of Jammu and Kashmir has not acceded to the Dominion of India or to Pakistan. Geographically my State is contiguous to both the Dominions. It has vital economic and cultural links with both of them. In their external relations the Dominions of India and Pakistan cannot ignore this fact. I wanted to take time to decide to which Dominion I should accede, or whether it is not in the best interests of both the Dominions and my State to stand independent, of course with friendly and cordial relations with both[ii]
The paragraph by his highness included an account of Tribal invasion and accepted to sign instrument of accession with union of India, it stated:
With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government[iii]
The ruler of j&K signed the instrument of accession on 26 October 1947 to accede to Indian domain. A contingent of Indian army was deployed to defend Kashmir thereafter. The instrument of assertion was first official document managing Centre-state relations with specific reference to J&K, but was subjected to confirmation by people of the state.
Section 370- A Bridge For Centre- State Relation
The section 370 of constitution of India acted as operation for managing the relation of Indian union to the state of Jammu and Kashmir, although the article provides the special status to the state to have its own constitution but the application of Indian constitution has extended gradually with time. Article 370 was incorporated which enabled the constitutional position of the state vis-à-vis the union of india to be defined from time to time [iv]
Article 370 of Indian constitution grants special status to the state of Jammu and Kashmir. The article is drafted PART-XXI of the constitution, which relates to temporary, transitional and special provisions for the state. 370. Temporary provision with respect to state of Jammu and Kashmir
The Supreme Court has refused to accept that Article 370 is temporary in nature. A five-judge bench said, Article 370 has never ceased to be operative. Thus, Article 370 is a permanent provision. If it is a permanent feature of our Constitution, then it cannot be amended and thus can be said to be the part of the basic structure.
Under Article 368, Parliament can amend any provision of the Constitution but as per the Keshvanand Bharti judgment, no constitutional amendment can either destroy the Constitution or alter its basic features. Interestingly, those opposed to Article 370 make contradictory arguments-. On the one hand, they argue it was a temporary provision and therefore is no more valid or needed.
First schedule read with Article 1 of the constitution says, State of Jammu and Kashmir is part of Ind ian union. It defines that the territory which immediately before commencement of this constitution was compromised in the Indian state of Jammu and Kashmir
It would be appropriate to quote Jenab Sheikh Sahib's views expressed in this regard while addressing the &ate Constituent Assembly on l lth August, 1952:
Here I would like to point out that the fact that Article 370 has been mentioned as a temporary provision in the Constitution does not mean that it is capable of being abrogated, modified or replaced unilaterally.
In actual effect, the temporary nature of this Article arises merely from the fact that the power to finalize the Constitutional relationship between he State and the Union of India has been specifically vested in the Jammu and Kashmir Constituent Assembly. It follows that whatever modifications, amendments or exceptions that may become necessary either to Article 370 or any other Article in the Constitution of India in their application to the Jammu and Kashmir State are subject to decisions of this Sovereign Body.
Centre-State Realtions With During Article 370
The division of powers between center and states has witness biasness of founding fathers of the constitution, in favor of the Centre. It is the idea of the frames of the Indian constitution that the Centre in strong position is naturally and necessarily needed, on the contrary state of Jammu and Kashmir witness the favor due to special political circumstance. The supreme court held in State of W.P v. K. Industries limited that:
The constitution is an organic living document. It outlook and expression as perceived end expressed by the interpreters of the must be dynamic and keep pace with the changing times[v].
The constitution established various provision to classify the distribution of Centre-state relations. These relations were according to the agreement was signed with the accession of state of Jammu and Kashmir to India and were different due to autonomy of state in certain matter over union. The relations between Centre and state are divides among: Legislative relations, Administrative relations, Financial relations
Centre-state Legislative relations
Articles 245 to 255 in Part XI deals with different aspects of legislative relations between centre and states.
Art.245(1) Parliament has, the power to legislate for ‘the whole or any part of the territory of India, which includes not only the states but also the union territory of India. [246 (1). It also possesses the power of ‘extra-territorial legislation [Art. 245 (2), which no state legislature possesses.
However, the territorial jurisdiction was limited, any regulation by the Union parliament which results in alteration of names or territories of the state require the consent of the state legislature to come in effect.
Subject matter of legislation
Concurrent List- It has 52 subjects enumerated under it. Union and the states can make laws on subjects of this list but in case of conflict between the Central Law and the State Law, the Central will prevail over the State law
However, initially the union legislature has no jurisdiction in case of concurrent list under 7th schedule of constitution of India, but eventually gained power to legislate in matters of concurrent subjects. Total No. of entries in the concurrent list 47 Entries applied 26 Balance 21
Entries 3,5,6,7,8,9,10,14,15,17,20,27,28,29,31,32,37,38,41,44. These entries relate to matters of social legislation, charitable institutions, relief and rehabilitation of displaced persons, transfer of property etc. etc.
Residuary Powers:
Article 248 says that, Parliament has exclusive power to make any law with respect to any matter not enumerated in any one of the three lists. This reflects the leanings of the Constitution-makers towards a strong Centre.
It was agreed during signing instrument of accession that while under the present Indian Constitution the Residuary Powers vested with the Centre in respect of all States other than Jammu and Kashmir, in the case of our State they vested in the State self and should continue as such. Ln this regard, Sheikh Sahib observed as follows:
We have always held that the ultimate source of sovereignty resides in the people. It, is, therefore, from the people that all powers can pow. Under these circumstances, it is upto the people of Kashmir through this Assembly to transfer more powers for mutual advantage to the custody of the union/Centre.
Emergency powers under the constitution of India
It consists of three types of emergencies when the governance of state is administering directly by the union government. Article 352- National Emergency arising out of war and internal disturbances, Article 356-Emergency in state (president's rule) due to breakdown of constitutional machinery in state, Article 360- Financial Emergency.
However, in the case of emergencies the power of union legislature is limited, in case of emergencies under article 352- internal disturbance can only be declared after at request or consent of the state legislature of state of Jammu and Kashmir.
Administrative Relations
The administrative relations between the union and the states may well be classified as under:
(i) normal and (ii) emergency conditions. The constitution has devised several techniques of control to be exercised over the states by the Union government under normal 57 circumstances. The states of union shall not interfere with the legislative and executive policies of the Union government. In order to ensure smooth and functioning of the administrative machinery at the two levels, the constitution embodies provision resulting the working of federal system.
Provision of PART XVII of the constitution Apply to J&K only as they relate to (i) the official language of the Union (ii) the official language for communication between one state and another, or the state or union. Urdu is the official language of the state but then again use of English is permitted for official purpose unless the state legislature provides otherwise.
Financial Realtions
The Indian constitution provides a very elaborate scheme of a Centre-state financial relations. A scheme of Centre-state relation, with the main character of the complete separation of taxing powers between the Centre and state, tax sharing between the two, allocation of funds of the states. The another most important feature to be noticed is the possibility of overlapping and multiple taxation. It is rightly said that:
No system of federation can be successful unless both the union and the states have at their disposal adequate financial resources to enable them to discharge their respective responsibilities under the Constitution
State government of Jammu and Kashmir spends its entire budget under 29 grants. Wherever the public expenditure is being made, the 29 grants are being grouped into five: Administrative Service, Social Service, Infrastructure Service, Economic Service and Financial Service.
Distribution of Tax Revenues
The Indian Constitution makes a distribution between the legislative power to levy a tax and the power to appropriate the proceeds of a tax so levied.
State of Jammu and Kashmir own revenues including share of central taxes is pegged at 11.82 % and tax revenue has been estimated to be 7.30 % in the year 2016-17. It is evident that States own tax revenue is showing increasing trend over the years and as the State economy is planned to grow at an annual rate of about 8% it will be the endeavor of the State Government to increase our own revenues
Distribution of Tax Revenue [vii]
Source: D.D.Basu, Introduction to the Indian
Constitution, 2005, p.327.
Non-tax Revenue
The main source of revenue for state are land revenue, sales tax and excise tax.
As tourism is also the most important sources for state economy, the state
government has large tourist department that runs many hotels, guesthouses and
transport system.
Grant-in-aid from the Union Government:
Grant-in-aid represents the significant component from the union government in the budgetary resource base of the State Government. The grant-in-aid from union government in absolute terms has remained 49 percent in 2016-17 vis-à-vis total revenue receipts and 42.75 percent vis-à-vis total expenditure.
The major policy reform under grant-in-aid has been aftermath of the abolition of the Planning commission and replacement of same by the NITI Ayog. The grants in terms of 14th Finance Commission are now fixed for next four years for the state.
Abrogation Of Article 370- Effects On Centre-State Realtion
Centre government resolution to reorganise Jammu and Kashmir. Under the Jammu and Kashmir Reorganisation Bill, 2019, the Centre plans to divide the state of J&K into two Union Territories —Jammu & Kashmir with legislation and Ladakh without legislation. The order has been issued by the Ministry of Home Affairs (Department of Jammu, Kashmir and Ladakh Affairs). It has also been notified in the Gazette of India along with a schedule mentioning all 37 central Acts.
The Order of the implementation of 37 central laws will be called the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020
Key points of Jammu & Kashmir Reorganization Bill, 2019[xi]
The government step to turn the state of J&K into two Union territories. the provisions of the Bill include:
Assembly seats in the Jammu and Kashmir:
The Reorganisation Bill, 2019 envisages the total number of Legislative Assembly seats 107 in the Jammu and Kashmir. Out of these 107 seats, 24 seats will remain vacant because these seats are in the Pakistan Occupied Kashmir (POK) which is illegally occupied by Pakistan.
After the abolition of article 370; some seats will be reserved for the Scheduled Castes and Scheduled Tribes in proportion to their population in the Union Territory of Jammu and Kashmir.
In addition to this; the Lieutenant Governor may nominate two women members if they are not adequately represented.
The Legislative assembly will have tenure of five years instead of 6 years earlier.
Change in Power of Governor
The Union Territory of Jammu and Kashmir will be administered by the President, through an administrator appointed by him. The administrator will be known as the Lieutenant Governor just like New Delhi Union Territory.
On the other hand, the Union Territory of Ladakh will also be administered by the President, through a Lieutenant-Governor appointed by him.
The Legislative Assembly may make laws for any part of the Union Territory of Jammu and Kashmir.
These laws are related to:
Council of Ministers:
The Union Territory of Jammu and Kashmir will have a Council of Ministers to aid and advise the Lieutenant Governor. The size of the council of the Minister will not be more than 10% of the total number of members in the Assembly.
The Chief Minister will communicate all decisions of the Council to the Lieutenant Governor like the Chief Minister of Delhi and Puducherry do.
Common High Court for both the UTs:
The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Jammu & Kashmir and Ladakh. In addition to this, there would be an Advocate General to provide legal advice to the government of the Union Territory of J&K.
Post abrogation impact on state of Jammu and Kashmir
Tourism
J&K is a premier as well as established tourist destination in the country. Directorate of J&K Tourism as well as J&K Tourism Development Corporation. The Department carries out the task of overall planning, promotion publicity and marketing, regulation of travel trade in terms of J&K registration of Tourist Trade Act, 1978/82. The tourism sector plays important role in the State's Economy -Tourism, which forms 8-10% of J&K's GDP, was in a shambles after the August 5, 2019 lockdown. Less than 50,000 tourists visited the U.T. between August and December 2019.
Economy
Industries Sector is now playing its due role in the economic development of the State and in generating employment opportunities for the unemployed youth. Previously, it used to be only the Handicrafts, Handlooms and Cottage Industry providing livelihood to a large population at different stages of production, sale and export. In the 120 days after August 5, 2019, the 10 districts of the Kashmir Valley suffered a loss of ₹17,878.18 cr. according to the Kashmir Chamber of Commerce & Industry. Here is how the figure was arrived at:
Unemployment
The issue before the Government is unemployment among the educated youth. The improvement in industry sector is bound to provide opening for employment to the youth of the State
The CMIE data show that the unemployment rate (UR) breached the 20% mark in August 2019 after staying below the figure for 30 months.
Conclusion
The of abrogation of article 370 unilaterally is possible but involvement of UN has made it an international issue and given chance to enemy nations to put out word to create a social turmoil in whole world. The sudden step of abrogation of 370 invited various petition in Hon'ble Supreme court of india challenging the constitutional validity of the government strep prevailing coronavirus pandemic conditions, has violated the rights of a large number of people, including dilution of the safeguards earlier available to the permanent residents of the state of Jammu and Kashmir. However, the only significant implication seen by this step of central government is the control of union over state of Jammu and Kashmir has increased in terms of legislative, administrative relations.
That the Centre has been able to diminish a state into a UT, without its consent when Jammu and Kashmir was under Presidents' Rule, so the assembly did not get to voice its opinion at the time, it might appear to be a symbol of weakening of the federal structure enshrined in our Constitution. However, it will be erroneous to decide on the fate of Indian federalism on just one such development. At last the recent years has displayed immense changes in relations of union and state of j&k, however the depth of these changes were not positive with view of constitution.
References:
This paper provides insight of relation between the Indian Union and the State of Jammu and Kashmir by outlining the gradual constitutional integration of J&k State to Centre, from accession to India in 1947 to application of the Indian constitution and its necessity. It shows how the Center-state relation concerning legislative, administrative, financial relation changed after the abrogation of Article 370. The paper highlights the mechanism for managing Center-state relations with specific reference to Jammu and Kashmir.
Introduction
It is rightly said: Federalism isn't about states' rights. It's about dividing power to better protect individual liberty. It can be said from the above saying that the federalism is not only limited to powers distribution but is combination of, the scheme of the distribution of powers and fundamental rights A federal constitution establishes a dual polity with the Centre and states, each need to exercise in the fields assigned to them.
The legislative, executive and not by any by any law passed by the Centre but by the constitution itself[i]. The Indian constitution provides for a new type of federalism particularly needed for the new Indian system, though the Indian model of federalism has been different from existing classic models but the essence of the federal constitution remained a division of powers between State and Centre.
Jammu and Kashmir stands out as the only state in India which is governed by this scheme of federalism, due to special circumstances under which the state assessed in Indian union. The centre and state of Jammu and Kashmir was arrived at an objective considered what ought to be belong to which legislature was decided based upon article 370 of the constitution of india by instruments of accession.
Historical Aspect
The initiation of the relation between the Indian union and the state of Jammu and Kashmir can be traced from the event when India and Pakistan gained their independence on the 14th and 15th of august 1947, respectively. Where many of the Muslim majority areas in the Western and Eastern parts joined Pakistan but J&K was an exception and decided to stay neutral on the grounds and choose to remain independent.
Thus, resulted in the creation of an agreement by j&k with India and Pakistan stating that neither nation will try to invade the territory of J&K. While India respected the agreement and exercised restraint, Pakistan attacked Kashmir to annex it by force. on 02 October 1947, Kashmir was attacked by Azad Kashmir forces which included a thousand tribesmen armed which were supported by Pakistan and the Dogra army failed to stop the large trained tribal invaders army, On 25th October, in response to invasion Maharaja Hari Singh, at last, wrote a letter to Mountbatten, the governor-general of India.
I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistance of your Government. As your Excellency is aware the State of Jammu and Kashmir has not acceded to the Dominion of India or to Pakistan. Geographically my State is contiguous to both the Dominions. It has vital economic and cultural links with both of them. In their external relations the Dominions of India and Pakistan cannot ignore this fact. I wanted to take time to decide to which Dominion I should accede, or whether it is not in the best interests of both the Dominions and my State to stand independent, of course with friendly and cordial relations with both[ii]
The paragraph by his highness included an account of Tribal invasion and accepted to sign instrument of accession with union of India, it stated:
With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government[iii]
The ruler of j&K signed the instrument of accession on 26 October 1947 to accede to Indian domain. A contingent of Indian army was deployed to defend Kashmir thereafter. The instrument of assertion was first official document managing Centre-state relations with specific reference to J&K, but was subjected to confirmation by people of the state.
Section 370- A Bridge For Centre- State Relation
The section 370 of constitution of India acted as operation for managing the relation of Indian union to the state of Jammu and Kashmir, although the article provides the special status to the state to have its own constitution but the application of Indian constitution has extended gradually with time. Article 370 was incorporated which enabled the constitutional position of the state vis-à-vis the union of india to be defined from time to time [iv]
Article 370 of Indian constitution grants special status to the state of Jammu and Kashmir. The article is drafted PART-XXI of the constitution, which relates to temporary, transitional and special provisions for the state. 370. Temporary provision with respect to state of Jammu and Kashmir
The Supreme Court has refused to accept that Article 370 is temporary in nature. A five-judge bench said, Article 370 has never ceased to be operative. Thus, Article 370 is a permanent provision. If it is a permanent feature of our Constitution, then it cannot be amended and thus can be said to be the part of the basic structure.
Under Article 368, Parliament can amend any provision of the Constitution but as per the Keshvanand Bharti judgment, no constitutional amendment can either destroy the Constitution or alter its basic features. Interestingly, those opposed to Article 370 make contradictory arguments-. On the one hand, they argue it was a temporary provision and therefore is no more valid or needed.
First schedule read with Article 1 of the constitution says, State of Jammu and Kashmir is part of Ind ian union. It defines that the territory which immediately before commencement of this constitution was compromised in the Indian state of Jammu and Kashmir
It would be appropriate to quote Jenab Sheikh Sahib's views expressed in this regard while addressing the &ate Constituent Assembly on l lth August, 1952:
Here I would like to point out that the fact that Article 370 has been mentioned as a temporary provision in the Constitution does not mean that it is capable of being abrogated, modified or replaced unilaterally.
In actual effect, the temporary nature of this Article arises merely from the fact that the power to finalize the Constitutional relationship between he State and the Union of India has been specifically vested in the Jammu and Kashmir Constituent Assembly. It follows that whatever modifications, amendments or exceptions that may become necessary either to Article 370 or any other Article in the Constitution of India in their application to the Jammu and Kashmir State are subject to decisions of this Sovereign Body.
Centre-State Realtions With During Article 370
The division of powers between center and states has witness biasness of founding fathers of the constitution, in favor of the Centre. It is the idea of the frames of the Indian constitution that the Centre in strong position is naturally and necessarily needed, on the contrary state of Jammu and Kashmir witness the favor due to special political circumstance. The supreme court held in State of W.P v. K. Industries limited that:
The constitution is an organic living document. It outlook and expression as perceived end expressed by the interpreters of the must be dynamic and keep pace with the changing times[v].
The constitution established various provision to classify the distribution of Centre-state relations. These relations were according to the agreement was signed with the accession of state of Jammu and Kashmir to India and were different due to autonomy of state in certain matter over union. The relations between Centre and state are divides among: Legislative relations, Administrative relations, Financial relations
Centre-state Legislative relations
Articles 245 to 255 in Part XI deals with different aspects of legislative relations between centre and states.
- According to territorial jurisdiction
- According to subject matter of legislation
Art.245(1) Parliament has, the power to legislate for ‘the whole or any part of the territory of India, which includes not only the states but also the union territory of India. [246 (1). It also possesses the power of ‘extra-territorial legislation [Art. 245 (2), which no state legislature possesses.
However, the territorial jurisdiction was limited, any regulation by the Union parliament which results in alteration of names or territories of the state require the consent of the state legislature to come in effect.
Subject matter of legislation
- The Union List:
It originally had 97 subjects, presently the Union List consists of 100 Subjects over which the Union shall have exclusive power of legislation. Centre has exclusive powers to frame laws on the subjects mentioned under the Union List of Indian Constitution
Total No. of entries in the union List - 97
Entries applied - 94
Balance 3 * [vi]
Entry 8- CBI, also get its power of jurisdiction from union. however, union do not have power relating to CBI jurisdiction in state of Jammu and Kashmir.
Entry 9- the parliament has no power to legislate preventive detention laws for the state connected with Defence matters.
Entry 34- Courts of wards for the estates of Rulers of Indian States
The Union, including defence, military and foreign affairs, major transport systems, commercial issues like banking, stock exchanges and taxes, are provided for the Union government to legislate exclusively.
Concurrent List- It has 52 subjects enumerated under it. Union and the states can make laws on subjects of this list but in case of conflict between the Central Law and the State Law, the Central will prevail over the State law
However, initially the union legislature has no jurisdiction in case of concurrent list under 7th schedule of constitution of India, but eventually gained power to legislate in matters of concurrent subjects. Total No. of entries in the concurrent list 47 Entries applied 26 Balance 21
Entries 3,5,6,7,8,9,10,14,15,17,20,27,28,29,31,32,37,38,41,44. These entries relate to matters of social legislation, charitable institutions, relief and rehabilitation of displaced persons, transfer of property etc. etc.
Residuary Powers:
Article 248 says that, Parliament has exclusive power to make any law with respect to any matter not enumerated in any one of the three lists. This reflects the leanings of the Constitution-makers towards a strong Centre.
It was agreed during signing instrument of accession that while under the present Indian Constitution the Residuary Powers vested with the Centre in respect of all States other than Jammu and Kashmir, in the case of our State they vested in the State self and should continue as such. Ln this regard, Sheikh Sahib observed as follows:
We have always held that the ultimate source of sovereignty resides in the people. It, is, therefore, from the people that all powers can pow. Under these circumstances, it is upto the people of Kashmir through this Assembly to transfer more powers for mutual advantage to the custody of the union/Centre.
Emergency powers under the constitution of India
It consists of three types of emergencies when the governance of state is administering directly by the union government. Article 352- National Emergency arising out of war and internal disturbances, Article 356-Emergency in state (president's rule) due to breakdown of constitutional machinery in state, Article 360- Financial Emergency.
However, in the case of emergencies the power of union legislature is limited, in case of emergencies under article 352- internal disturbance can only be declared after at request or consent of the state legislature of state of Jammu and Kashmir.
Administrative Relations
The administrative relations between the union and the states may well be classified as under:
(i) normal and (ii) emergency conditions. The constitution has devised several techniques of control to be exercised over the states by the Union government under normal 57 circumstances. The states of union shall not interfere with the legislative and executive policies of the Union government. In order to ensure smooth and functioning of the administrative machinery at the two levels, the constitution embodies provision resulting the working of federal system.
Provision of PART XVII of the constitution Apply to J&K only as they relate to (i) the official language of the Union (ii) the official language for communication between one state and another, or the state or union. Urdu is the official language of the state but then again use of English is permitted for official purpose unless the state legislature provides otherwise.
Financial Realtions
The Indian constitution provides a very elaborate scheme of a Centre-state financial relations. A scheme of Centre-state relation, with the main character of the complete separation of taxing powers between the Centre and state, tax sharing between the two, allocation of funds of the states. The another most important feature to be noticed is the possibility of overlapping and multiple taxation. It is rightly said that:
No system of federation can be successful unless both the union and the states have at their disposal adequate financial resources to enable them to discharge their respective responsibilities under the Constitution
State government of Jammu and Kashmir spends its entire budget under 29 grants. Wherever the public expenditure is being made, the 29 grants are being grouped into five: Administrative Service, Social Service, Infrastructure Service, Economic Service and Financial Service.
Distribution of Tax Revenues
The Indian Constitution makes a distribution between the legislative power to levy a tax and the power to appropriate the proceeds of a tax so levied.
State of Jammu and Kashmir own revenues including share of central taxes is pegged at 11.82 % and tax revenue has been estimated to be 7.30 % in the year 2016-17. It is evident that States own tax revenue is showing increasing trend over the years and as the State economy is planned to grow at an annual rate of about 8% it will be the endeavor of the State Government to increase our own revenues
Distribution of Tax Revenue [vii]
| Union Taxes (Exclusive) | State Taxes (Exclusive) |
| Customs duty, Corporation tax. Taxes on Capital value of assets of individuals and companies Surcharge on income tax etc., Fees in respect of matters in the Union List | Customs duty, Corporation tax. Taxes on Capital value of assets of individuals and companies Surcharge on income tax etc., Fees in respect of matters in the Union List |
Non-tax Revenue
| 2011-12 | 2012-13 | 2013-14 | 2014-15 | 2015-16 | 2016-17 |
| 2002 (8.08) | 2160 (8.23) | 2870 (10.58) | 1978 (6.83) | 3913 (10.94) | 4072 (9.70) [viii] |
- the State Government specified the duties and functions of the
Directorate of J&K Tourism as well as J&K Tourism Development
Corporation Tourism sector accounts for around 6.98% of State's GDP[ix]. However, J&K State
is not among top 10 domestic destinations in the country on the basis of number
of tourist arrival.
- The state is rich in horticulture and floriculture. There are around 7 lakh families comprising of about 33 lakh people which are directly or indirectly associated with horticulture.
Grant-in-aid from the Union Government:
Grant-in-aid represents the significant component from the union government in the budgetary resource base of the State Government. The grant-in-aid from union government in absolute terms has remained 49 percent in 2016-17 vis-à-vis total revenue receipts and 42.75 percent vis-à-vis total expenditure.
The major policy reform under grant-in-aid has been aftermath of the abolition of the Planning commission and replacement of same by the NITI Ayog. The grants in terms of 14th Finance Commission are now fixed for next four years for the state.
Abrogation Of Article 370- Effects On Centre-State Realtion
Centre government resolution to reorganise Jammu and Kashmir. Under the Jammu and Kashmir Reorganisation Bill, 2019, the Centre plans to divide the state of J&K into two Union Territories —Jammu & Kashmir with legislation and Ladakh without legislation. The order has been issued by the Ministry of Home Affairs (Department of Jammu, Kashmir and Ladakh Affairs). It has also been notified in the Gazette of India along with a schedule mentioning all 37 central Acts.
The Order of the implementation of 37 central laws will be called the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020
Key points of Jammu & Kashmir Reorganization Bill, 2019[xi]
The government step to turn the state of J&K into two Union territories. the provisions of the Bill include:
- The Union Territory of Ladakh will comprise the following territories of the existing J&K: Kargil and Leh districts. These districts will cease to be part of the existing state of J&K.
- J&K will be known as the Union Territory of Jammu and Kashmir, comprising the territories of the existing state of Jammu and Kashmir.
- The Governor of the state will be the Lieutenant Governor of Jammu and Kashmir and Ladakh.
- Four sitting members of the Council of States representing the existing state of J&K will be deemed to have been elected to fill the seats allotted to the UT of J&K. The term of the sitting members will remain unaltered.
- Five seats will be allocated to J&K and one sent to Ladakh. The Election Commission of India may conduct parliamentary elections for J&K and Ladakh according to the allocation of seats.
- The provisions in Article 239A, which are applicable to Puducherry, will also apply to J&K. This implies that an administrator designated as Lieutenant Governor will be appointed for J&K.
- J&K will have a Legislative Assembly, which will be filled through direct elections. Total number of seats in J&K will be 107.
- Until the area of the Union Territory of Jammu and Kashmir under the occupation of Pakistan ceases to be occupied and the people residing in that area elect their representatives, twenty-four seats in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly.
- Ladakh will be administered by the President through a Lieutenant Governor.
- The President can make regulations for peace, progress and good governance of Ladakh.
- The Lieutenant Governor will be assisted by advisors appointed by the central government.
Assembly seats in the Jammu and Kashmir:
The Reorganisation Bill, 2019 envisages the total number of Legislative Assembly seats 107 in the Jammu and Kashmir. Out of these 107 seats, 24 seats will remain vacant because these seats are in the Pakistan Occupied Kashmir (POK) which is illegally occupied by Pakistan.
After the abolition of article 370; some seats will be reserved for the Scheduled Castes and Scheduled Tribes in proportion to their population in the Union Territory of Jammu and Kashmir.
In addition to this; the Lieutenant Governor may nominate two women members if they are not adequately represented.
The Legislative assembly will have tenure of five years instead of 6 years earlier.
Change in Power of Governor
The Union Territory of Jammu and Kashmir will be administered by the President, through an administrator appointed by him. The administrator will be known as the Lieutenant Governor just like New Delhi Union Territory.
On the other hand, the Union Territory of Ladakh will also be administered by the President, through a Lieutenant-Governor appointed by him.
The Legislative Assembly may make laws for any part of the Union Territory of Jammu and Kashmir.
These laws are related to:
- Any matters specified in the State List of the Constitution, except Police and Public Order, and
- Any matter in the Concurrent List applicable to Union Territories.
Council of Ministers:
The Union Territory of Jammu and Kashmir will have a Council of Ministers to aid and advise the Lieutenant Governor. The size of the council of the Minister will not be more than 10% of the total number of members in the Assembly.
The Chief Minister will communicate all decisions of the Council to the Lieutenant Governor like the Chief Minister of Delhi and Puducherry do.
Common High Court for both the UTs:
The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Jammu & Kashmir and Ladakh. In addition to this, there would be an Advocate General to provide legal advice to the government of the Union Territory of J&K.
Post abrogation impact on state of Jammu and Kashmir
Tourism
J&K is a premier as well as established tourist destination in the country. Directorate of J&K Tourism as well as J&K Tourism Development Corporation. The Department carries out the task of overall planning, promotion publicity and marketing, regulation of travel trade in terms of J&K registration of Tourist Trade Act, 1978/82. The tourism sector plays important role in the State's Economy -Tourism, which forms 8-10% of J&K's GDP, was in a shambles after the August 5, 2019 lockdown. Less than 50,000 tourists visited the U.T. between August and December 2019.
Economy
Industries Sector is now playing its due role in the economic development of the State and in generating employment opportunities for the unemployed youth. Previously, it used to be only the Handicrafts, Handlooms and Cottage Industry providing livelihood to a large population at different stages of production, sale and export. In the 120 days after August 5, 2019, the 10 districts of the Kashmir Valley suffered a loss of ₹17,878.18 cr. according to the Kashmir Chamber of Commerce & Industry. Here is how the figure was arrived at:
Unemployment
The issue before the Government is unemployment among the educated youth. The improvement in industry sector is bound to provide opening for employment to the youth of the State
The CMIE data show that the unemployment rate (UR) breached the 20% mark in August 2019 after staying below the figure for 30 months.
Conclusion
The of abrogation of article 370 unilaterally is possible but involvement of UN has made it an international issue and given chance to enemy nations to put out word to create a social turmoil in whole world. The sudden step of abrogation of 370 invited various petition in Hon'ble Supreme court of india challenging the constitutional validity of the government strep prevailing coronavirus pandemic conditions, has violated the rights of a large number of people, including dilution of the safeguards earlier available to the permanent residents of the state of Jammu and Kashmir. However, the only significant implication seen by this step of central government is the control of union over state of Jammu and Kashmir has increased in terms of legislative, administrative relations.
That the Centre has been able to diminish a state into a UT, without its consent when Jammu and Kashmir was under Presidents' Rule, so the assembly did not get to voice its opinion at the time, it might appear to be a symbol of weakening of the federal structure enshrined in our Constitution. However, it will be erroneous to decide on the fate of Indian federalism on just one such development. At last the recent years has displayed immense changes in relations of union and state of j&k, however the depth of these changes were not positive with view of constitution.
References:
- The constitution of the United states of Amercica,1787
- Government Of India Publication 1947, para-1-4 Official letter written by
maharaja Hari Singh (ruler of jammu and Kashmir province)
http://www.jammu-kashmir.com/documents/harisingh47.html - Operative paragraph of letter] http://www.jammu-kashmir.com/documents/harisingh47.html
- Section 3 of constitution of Jammu and Kashmir
- [Supreme court W.P v. K. Industries] AIR 2004 SC 1647
- [Report Of The State Autonomy Committee Srinagar July, 2000] page 86 https://vifdatabase.com/wp-content/uploads/2018/05/autonomy.pdf
- D.D.Basu, Introduction to the Indian Constitution, 2005, p.327
- Finance survey page jkgov.nic
- [Government of jammu and kashmir, J&K Tourism Development Corporation Tourism survey report] page-98 https://jakfinance.nic.in/SROs/SRO_2017/EconomicSurvey2017.pdf
- [Page-91, horticulture development survey,] https://jakfinance.nic.in/SROs/SRO_2017/EconomicSurvey2017.pdf
- [Jammu and Kashmir reorganisation, key points of the bill,2019] https://www.business-standard.com/about/what-is-jammu-kashmir-reorganisation-bill
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