RTI Applicable To Office Of CJI: SC Upholds Delhi HC Judgment

                                         To start with, in a latest, landmark and extremely laudable judgment titled Central Public Information Officer, Supreme Court Of India vs Subhash Chandra Aggarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010, the Supreme Court on November 13 while exercising its civil appellate jurisdiction has clearly and categorically held that the office of Chief Justice of India is a public authority under the Right to Information Act. But it has also added a rider that “when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. The five Judge Constitution Bench comprising of the then Chief Justice of India – Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna heard this all-important case which will have immense significance as it directly concerns the top court and none other than the Chief Justice of India himself!

To put things in perspective, a Constitution Bench of Chief Justice of India Ranjan Gogoi and all the Judges mentioned in the above para upheld the January 2010 Delhi High Court judgment delivered by the then Chief Justice AP Shah, Vikramjit Sen and S Murlidhar which said that the Apex Court and the office of the CJI would fall within the ambit of the 2005 RTI Act which in turn had upheld the then single Judge of Delhi High Court – Justice Ravindra Bhatt (later elevated as Supreme Court Judge) who had held on September 2, 2009 that, “The Office of the Chief Justice of India is a public authority under the RTI Act and is covered by its provisions”.  The Apex Court dismissed three appeals filed by its Central Public Information Officer and Secretary General challenging the order. While on the one hand, the then CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna rendered one judgment and it was Justice Sanjiv Khanna who wrote the majority opinion on behalf of the Bench, on the other hand, Justices NV Ramana and Justice DY Chandrachud delivered two separate concurring judgments.

Needless to say, the introductory para first and foremost sets the tone and tenor of this landmark judgment by pointing out that, “This judgment would decide the afore-captioned appeals preferred by the Central Public Information Officer (‘CPIO’ for short), Supreme Court of India (appellant in Civil Appeal Nos. 10044 and 10045 of 2010) and Secretary General, Supreme Court of India (appellant in Civil Appeal No. 2683 of 2010), against the common respondent – Subhash Chandra Agarwal, and seeks to answer the question as to ‘how transparent is transparent enough’ under the Right to Information Act, 2005 (RTI Act’ for short) in the context of collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.”

What follows next in para 2 is stated thus: “Civil Appeal No. 10045 of 2010 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal arises from an application moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India on 6th July, 2009 to furnish a copy of the complete correspondence with the then Chief Justice of India as the Times of India had reported that a Union Minister had approached through a lawyer, Mr. Justice R. Reghupati of the High Court of Madras to influence his judicial decisions. The information was denied by the CPIO, Supreme Court of India on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry. First appeal filed by Subhash Chandra Aggarwal was dismissed by the appellate authority vide order dated 05th September, 2009. On further appeal, the Central Information Commission (‘CIC’ for short) vide order dated 24th November, 2009 has directed disclosure of information observing that disclosure would not infringe upon the constitutional status of the judges. Aggrieved, the CPIO, Supreme Court of India has preferred this appeal.”

Going forward, para 3 then further enunciates that, “Civil Appeal No. 10044 of 2010 arises from an application dated 23rd January, 2009 moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India to furnish a copy of complete file/papers as available with the Supreme Court of India inclusive of copies of complete correspondence exchanged between the concerned constitutional authorities with file notings relating to the appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A.P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta, which was allegedly objected to by the Prime Minister. The CPIO vide order dated 25th February, 2009 had denied this information observing that the Registry did not deal with the matters pertaining to the appointment of the judges to the Supreme Court of India. Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed by law and the matters relating thereto were not dealt with and handled by the Registry of the Supreme Court. The information was neither maintained nor available with the Registry. First appeal preferred by Subhash Chandra Agarwal was rejected vide order dated 25th March, 2009 by the appellate authority. On further appeal, the CIC has accepted the appeal and directed furnishing of information by relying on the judgment dated 02nd September, 2009 of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal & Another. The CIC has also relied on the decision of this Court in S.P. Gupta v. Union of India & Others (1981) Supp SCC 87 to reach its conclusion. Aggrieved, the CPIO, Supreme Court of India has preferred the present appeal stating, inter alia, that the judgment in Writ Petition (Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi High Court in LPA No. 501 of 2009 vide judgment dated 12th January, 2010, which judgment is the subject matter of appeal before this Court in Civil Appeal No. 2683 of 2010.”

To be sure, while writing the main judgment, Justice Sanjiv Khanna said the court while stressing the need for balancing transparency and accountability with judicial independence, “should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information.” He also added unequivocally that the “independence in a given case may well demand openness and transparency by furnishing the information.” It is certainly crucial as it will now open the door to RTI requests unlike earlier when the judicial system was rather opaque!

As it turned out, the historic order made it clear that, “Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Of course, the Bench said that the type and nature of the information is also a relevant factor to be considered. It also made it clear that, “Distinction must be drawn between the final opinion or resolutions passed by the collegiums with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegiums had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision…Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open”.

To put it succinctly, it is stated in para 89 by Justice Sanjiv Khanna on behalf of five Judges of Constitution Bench that, “In view of the aforesaid discussion, we dismiss Civil Appeal No. 2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11(1) of the RTI Act would come into operation.”

What’s more, para 90 then holds that, “As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 are concerned, they are to be partly allowed with an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. Before a final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown. The reference and the appeals are accordingly disposed of.”

Simply put, the key findings in this landmark judgment authored by Justice Sanjiv Khanna for himself, CJI Ranjan Gogoi and Justice NV Ramana are as follows:-

1.  The Supreme Court of India and the office of the CJI are two different public authorities. The Supreme Court would necessarily include the office of CJI and other Judges in view of Article 124 of the Constitution.

2.  Ordinarily the relationship between the Chief Justice and Judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise.

3.  The details of personal assets of Judges would not amount to personal information and disclosure of the same will not violate right to privacy of Judges.

4.  Confidentiality has to be maintained in some aspects of judicial administration. It was held rightly that, “Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature.”

While delivering a separate but concurring judgment, Justice NV Ramana first and foremost seeks to make it clear that, “In the domain of human rights, right to privacy and right to information have to be treated as co-equals and none can take precedence over the other, rather a balance needs to be struck”.

On transparency, Justice Ramana very rightly elucidates in para 42 of his judgment that, “Coming to the aspect of transparency, judicial independence and the RTI Act, we need to note that there needs to be a balance between the three equally important concepts. The whole bulwark of preserving our Constitution, is trusted upon judiciary, when other branches have not been able to do so. As a shield, the judicial independence is the basis with which judiciary has maintained its trust reposed by the citizens. In light of the same, the judiciary needs to be protected from attempts to breach its independence. Such interference requires calibration of appropriate amount of transparency in consonance with judicial independence.”

While striking a note of caution, Justice Ramana then very rightly observed in para 43 that, “It must be kept in the mind that the transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold. We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary. While applying the second step the concerned authority needs to balance these considerations as well.”

While welcoming this noteworthy judgment, the 69-year-old RTI activist Subhash Chandra Agarwal who fought an arduous 12-yeart-long battle to ensure that the highest office in judiciary is answerable to people termed the Apex Court’s decision on it as “milestone” in the fight for transparency in public offices. He eloquently said that, “This is a landmark judgment and will prove to be a milestone in the era of transparency. The Apex Court has ruled against its own (office) and said that the CJI comes under the ambit of RTI. I wholeheartedly welcome the Supreme Court’s judgment.”

It cannot be denied that a new study by Vidhi Centre for Legal Policy has found that there is a “yawning gap” between the judiciary’s pronouncements on the Right to Information (RTI) Act and the manner in which the High Courts are implementing it. The report said that, “In particular, the lack of transparency in financial matters of the High Courts is very worrying. Most High Courts do not proactively publish details about their budgets and expenditure. Even fewer High Courts are willing to provide copies of their budgets and audit reports under the RTI Act.” The report has also found that several High Courts have included patently illegal clauses in their RTI Rules and despite Section 8 of the RTI Act restricting the number of grounds for denying information to citizens, the RTI rules of several High Courts have included additional grounds for rejecting requests for information! The report also said that it should be a matter of concern to see the judiciary lagging behind the Centre when it comes to abiding by the letter and spirit of the RTI Act! All this must change if this latest, landmark and extremely laudable judgment is to be taken to its logical conclusion!

Justice DY Chandrachud in his separate yet concurring judgment very rightly and remarkably points out while going the extra mile saying in para 117 that, “If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegiums system postulates that proposals for appointment of judges are initiated by the judges themselves.”

Needless to say, Justice Chandrachud also minces no words to make it clear by adding further after mentioning the essential substantial norms in regard to judicial appointments in this same para 117 that, “The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.”

No doubt, this extremely landmark and laudable judgment has sent a very loud and clear message that even CJI is not exempted from the purview of RTI Act. This will clearly serve to increase transparency in the functioning of judiciary. This will also send a loud and clear message that the judiciary has to show more and hide less!

It has certainly set a great precedent for other institutions to follow and it won’t be asking too much if we say that Centre must work relentlessly to ensure that those who are left out of its purview are too brought under its ambit! Even political parties and politicians must be brought fully within RTI’s ambit! CBI which is still out of RTI must also be brought within RTI’s ambit!

It must be mentioned here that when the RTI Act was enacted on October 12, 2005, the CBI came under its purview but the CBI later moved for exemption and this was endorsed by the then Union Law Minister M Veerappa Moily of the UPA government even though Moily himself as head earlier of the Administrative Reforms Commission had recommended that armed forces be exempted from RTI Act but no such recommendation was made for the CBI! Anyway, it has to be conceded that a good beginning has been made by the Apex Court by holding clearly that the office of the Chief Justice of India is a public authority under the RTI Act! But it should not stop just here only! This good tempo must be certainly maintained and all those left out should also be brought under its ambit!

Sanjeev Sirohi

Supreme Court restored the honour of an Army veteran who was among officers led Operation Blue Star

NEW DELHI: A bench of Justices A K Sikri and Ashok Bushan dismissed the appeal of the Centre against the AFT order but reduced the cost imposed on the government from Rs 10 lakh to Rs 1 lakh.

The top court upheld the decision of Armed Forces Tribunal setting aside the “punishment of reprimand” awarded to Major (now retd) Kunwar Ambreshwar Singh on charge of retaining certain electronic items recovered during the operation to flush out Sikh extremists from the Golden Temple Complex.

We see no merit in this appeal and the same is, accordingly, dismissed. However, we find that the costs of Rs 10 lakhs imposed upon the appellant is quite excessive. We reduce the said costs to Rs 1 lakh,” the bench said.

Singh was commissioned in the Army in 1967. As a Major in the 26 Madras Regiment in June 1984, he was posted at Jalandhar as part of the 38 Infantry Brigade and 15 Infantry Division. It was then that he was assigned the task to flush out Sikh extremists from the temple compllex in Amritsar.

Rajeev Gandhi killer’s cant be released: Centre to Supreme Court

NEW DELHI: The seven Rajeev Gandhi killers jailed in Tamil Nadu cannot be released, the Indian government told the Supreme Court today, asserting that the case involves the assassination of a former Prime Minister. The CBI, which investigated the case, has opposed the release of the seven convicts, the court was told.

The seven convicts had been in jail for 27 years. The convicts, Perarivalan, Murugan, Santhan, Nalini Sriharan, Robert Pious, Jayakumar and Ravichandran, are serving life terms. Rajiv Gandhi was assassinated in 1991 by a woman operative of the separatist Lankan Tamil outfit LTTE.

In 2014, then Chief Minister J Jayalalithaa decided to release the convicts but the centre – the Congress-led government was in power challenged her decision. The Supreme Court then said the state could not take such a decision without the centre’s sanction, as the case was investigated by the CBI.

Tamil Nadu had been informed of the decision on April 18, the Centre told the court.

The government called the former prime minister’s killing “gruesome” and added that killers don’t deserve leniency.

“Legal Educators should prepare budding legal professionals on Globalised Knowledge

Press Release

“Legal Educators should prepare budding legal professionals on Globalised Knowledge” avers Justice Suresh Kumar Kait during an seminar at Amity

To familiarize budding legal professionals with the impact of globalization on Indian legal scenario and the emerging opportunities, Corporate Resource Centre (CRC)- Amity Law Schools organized a seminar on ‘Globalization of Indian Legal System: New Trends, Challenges and Expectations’ at Amity University Uttar Pradesh, Noida.

 

The seminar witnessed the presence of legal experts including Mr. Justice Suresh Kumar Kait, Judge, High Court of Telangana and Andhra Pradesh; Mr. Siddharth Luthra, Sr. Advocate, Managing Partner, Luthra and Luthra Law Firm; Ms. Akila Agrawal, Partner, Shardul Amarchand Mangaldas Law Firm; Dr. James Nedumpara, Head and Professor, Centre for International Trade and Investment Law (CTIL), IIFT; Mr. Jeetendera Kumar, Senior Manager, HCL; Ms. Abha Thapliyal Gandhi, Publishing Director, South Asia Press and Mr. Ashok Bhan, Sr. Advocate, Supreme Court of India.

 

Welcoming the guests, Gp. Capt. A.K. Saxena, Dy. Director & Head, CRC said that globalization has brought a revolution in International trade and economics, which has made a strong impact on the legal profession as well. He further added that it has opened new doors and established far-fetched work areas with abundant returns for legal professionals. Gp Capt Saxena averred that there are many emerging trends in legal area such as intellectual property protection, environment protection, competition law, corporate taxation, infrastructure contract, corporate governance and investment law and through interaction with legal experts, students will be more aware and enlightened for opting the right career path.

 

Addressing the gathering, Mr. Justice Suresh Kumar Kait said that in the age of internet and frequent international travel; judges, lawyers, academicians and even, law students across the globe have opportunities to collaborate and learn from each other’s experiences. He mentioned that with globalization in legal profession, access to foreign legal material has become much easier for information and communication, which is required for various legal cases. Justice Kait shared that with the growth of multi nationals in India, there is an urgent need to have competent lawyers who could be trained in right culture of legal education imbibed with highly technical knowledge. He opined that legal educators should also prepare the budding legal professionals to meet the new challenges of working in a globalised knowledge.

 

Speaking on the occasion, Mr. Siddartha Luthra said that initially, there was three year law programme in India and Indian law practices focused only domestically but with globalization, legal practices have become transnational and domestic hindrance has been changed. He stressed that Arbitration Dispute Resolution is the area in which law has witnessed a vast growth resulting in nature of legal practice to become global. He lamented that despite numerous amendments, India still has not been able to be an arbitrary hub due to interference of courts. Mr. Luthra averred that at present time, Asia is witnessing a huge movement as it is the centre for development of industry and services and opined that Indian lawyers must work toward making India a complete globalised nation by integrating with world economy. Sharing his views on globalization of law firms, he mentioned that it is necessary for Indian law firms to change the way they function. He emphasized that in-house expertise of other professionals should be included for advice to be rendered to clients for cases. Mr. Luthra further added that without a change, Indian law firms will not be able to match the expertise of global law firms.

 

Ms.Akila Agrawal apprised that after globalization, law firms in India have evolved and now the firms are process driven and professionally managed commercial organizations. She advised the budding legal professionals to grab the opportunities to explore as many legal areas as possible while pursuing law programme as while practicing law, legal firms may give rotation but will not provide much freedom to young associates to dabble within legal areas. She further added that in today’s time, it is expected from a legal professional to have working knowledge about every legal aspect of client’s business. Ms. Agrawal stressed that for transactional law, firms today has country specific legal experts as it is understood that legal consultation cannot work in lines of ‘one shoe fits all’ and advised the budding professionals, seeking expertise in transactional law, to be attuned with the country specific grievances, their local issues and their legal functioning to offer the accurate legal advice.

Special Provisions Given To Jammu And Kashmir

by : HIMANSHU SETIA

INTRODUCTION

The Constitution of India provides for uniform rule over the whole country. But certain regions of the country are governed by special provisions . These provisions ensure the protection of cultural identities, customs and economic and political interests of the original inhabitants of these areas. One of them is Jammu and Kashmir, which is a constituent State of Indian Union, but its Constitutional position, and its relation with the Central Government, somewhat differ from that of other States and the same enjoys special autonomy which is enshrined in Part XXI under Article 370 of the Constitution of India, according to which, no law enacted by the Parliament of India, except for those in the field of defence, communication and foreign policy, will be extendable in Jammu and Kashmir unless it is ratified by the state legislature of Jammu and Kashmir. Subsequently, jurisdiction of the Supreme Court of India over Jammu and Kashmir has been extended.

The State was acceded to the Dominion of India by Maharaja Hari Singh, who was the ruler of the State in 1947 at the time when India was itself burning in the flames of communal riots. Jammu and Kashmir is also the only Indian state that has its own flag and constitution, and Indians from other states cannot purchase land or property in the state. Designed by the then ruling National Conference, the flag of Jammu and Kashmir features a plough on a red background symbolizing labour substituted the Maharaja’s state flag.

The internal position of the Jammu and Kashmir was also not far better than India. Communal disturbances and hunger for power in the sub-continent were provocating the religious feelings of community in order to fulfil their long awaited desire to assume political supremacy. The division of the sub-continent on the basis of the religion was creating hindrances in achieving the very objective of “Independence”.

HISTORICAL BACKGROUND

There are some Constitutional changes that took place in the State of Jammu and Kashmir. The letter dated October 27, 1947, the Governor-General, the Maharaja of Jammu and Kashmir, Hari Singh, offered to accede the Dominion of India. On March 5, 1948 the Maharaja issued a proclamation forming a responsible government of the Council of Ministers headed by the Prime Minister which was to take steps to constitute a National Assembly bases on adult franchise to frame a Constitution for the State. On November 25, 1949, Yuvraj Khan Singh, to whom the power was entrusted by the Maharaja, issued a proclamation directing that the Constitution of India to be adopted by the Constituent Assembly of the State insofar as it was applicable in Jammu and Kashmir in order to govern the relationship of the State and the contemplated Union of India. The Constitution of India was adopted on November 26, 1949, and on the same day some of it provisions came into force and the remaining provisions came into force on January 26, 1950. In October 1947, the accession was made by the ruler in favour of India in consideration of certain commitments made by Pt. JawaharLal Nehru (the then Prime Minister of India). It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution of India.Article 370 of the Constitution of India dealt with the relationship of the State of Jammu and Kashmir with the Union of India. On January 26, 1950 the Constitution which was applicable to Jammu and Kashmir Order, 1950, was made by the President. On April 20, 1951, the Maharaja issued a proclamation in pursuance of which the Constituent Assembly of the State submitted the interim report recommended that —-

 The form of the future Constitution of Jammu and Kashmir shall be wholly democratic;

 The institution of hereditary ruler ship shall be terminated;

 The office of the Head of the State shall be elective.

RECOMMENDATIONS ADOPTED BY THE CONSTITUENT ASSEMBLY

The Constituent Assembly of the State by a resolution adopted these recommendations. The relevant part of the resolution is as follows:

(1)

(i) that the Head of the State shall be the person recognised by the President of the Union on the recommendations of the Legislative Assembly of the State;

(ii) he shall hold office during the pleasure of the President;

(iii) he may, by writing under his hand addressed to the President resign his office;

(iv) subject to the foregoing provisions, the Head of the State shall hold office for a term of five years from the date he enters upon his office;

Provided that he shall, notwithstanding the expiration of his term, continue to hold office until his successors enters upon his office;

(2) that the recommendations of the Legislative Assembly of the State in respect of the recognition of the Head of the State specified in sub-para (1) of paragraph 1, shall be made by elections..

(3) that the Head of the State shall be designated as the Sadar-i-Riyasat .

On May14, 1954, in exercise of the power conferred by Article 370 (1) of the Constitution of India, the president, with the concurrence of the government of the State, made the Constitution of (Application to Jammu and Kashmir) Order, 1954. It superseded the earlier Order of 1950, and extended the application of various provisions of the Constitution of India to the State. One such provision was Article 368 but a proviso was added to the effect that “no State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article370”. On November 17, 1956, the Jammu and Kashmir Constitution was adopted. Some sections of the Constitution came into force on January 26, 1957.

The State of Jammu and Kashmir is a part of Indian Territory and is included in the List of States in the First Schedule of the Constitution. 

HOW SPECIAL POSITION OF JAMMU AND KASHMIR IS DIFFERENT FROM OTHER STATES ?

The position of this State differs from other States in the following respects:-

 

GIST OF SPECIAL PROVISIONS

 

À    LEGAL POWER OF THE PARLIAMENT. À      The legislative authority dealing of the Union Parliament in respect of this State is limited to those matters in the Union List and Concurrent List which are declared by the President, in consultation with the government of the State, to conform the term of the Instrument of Accession.[9] 
À    SEPARATE CONSTITUTION. À      The only State in India i.e. Jammu and Kashmir has a separate Constitution which was adopted on November 17, 1956 and came into force on 26th January, 1957.
 À    PROVISIONS RELATED TO EMERGENCY.[10]  À      The power does not vest with the Union to declare Financial Emergency[11]in the state. The Union can declare emergency in the state only in case of War or External Aggression. No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the state unless the following situations arises:-

it is made at the request or with the concurrence of the government of the state; or

 

where it has not been so made, it is applied subsequently by the President to that state at the request or with the concurrence of the government of that state[12].

 

À    FUNDAMENTALS RIGHTS[13], DIRECTIVE PRINCIPLES OF STATE POLICY[14] AND FUNDAMENTAL DUTIES[15]. À      Article 19 (1) (f)[16] and Article 31(2)[17]of the Constitution are still applicable to Jammu and Kashmir.

À      Supplementary to above, Directive Principles of State Policy and Fundamental Duties are also not applicable to Jammu and Kashmir.

À    HIGH COURT OF JAMMU AND KASHMIR. À      The High Court of J&K has very limited powers as compared to other High Courts within India.

À      It can’t declare any law unconstitutional. Unlike High Courts in other states, under Article 226[18] of the Constitution, it can’t issue writs[19] except for enforcement of Fundamental Rights.

À    OFFICIAL LANGUAGES.[20] À      The official language for communication between one state and another; or between a state and the Union;

À      The official language of the Union;

 

À      The language of the proceedings in the Supreme Court;

 

À      Urdu is the official language of Jammu. and Kashmir but use of English is permitted for official purposes unless the state legislature provides otherwise.

À    PREVENTIVE DETENTION LAWS.[21] À      The power of legislation regarding preventive detention laws vests in the State Legislature alone and not in the Parliament.
À    OTHER PROVISIONS OF THE CONSTITUTION OF INDIA. À      The other provisions of the Constitution of India shall apply to Jammu and Kashmir as the President may by order specify.

POWER OF THE PRESIDENT UNDER ARTICLE 370

Article 370 clearly states that due to the special position given to State of Jammu and Kashmir, the President is given the power to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify. The President has power to say by order that certain provisions of the Constitution will be expected from application to the State of Jammu and Kashmir and on such order being made those provisions would not apply to that State. Besides this power of making exceptions, the President is also given power to apply the provisions of the Constitution with such modifications as he thinks fit. The meaning of the word ‘modification’ used in Article 370 (1) must be given the widest effect, including making racial modifications.

HOW CAN WE AMEND ARTICLE 370 WHEN THE CONSTITUENT ASSEMBLY OF JAMMU AND KASHMIR NO LONGER EXISTS?

According to the provision enshrined under Article 370 (3) of the Constitution of India, consent of the Constituent Assembly of the State and State Legislature are required to amend Article 370.

This issue has been raised at par. Various constitutional experts and jurists are silent on this aspect. Some of them say it can be amended by an amendment Act under Article 368 of the Constitution of India and the amendment extended under Article 370 (1), but the proper answer is yet to come.

In reality, this is the actual status of Article 370 which is still a very debatable and mooted question and remains unanswered.

JUDICIAL APPROACH

Now, let us see the vital role played by the Judiciary in the light of the following decided cases which are related to Article 370 of the Constitution of India.

In the case of SampatPrakashv.State of J&K :

The main issue which was raised by the petitioner was based on the fact that Article 35 (c) of Jammu and Kashmir Constitution as initially introduced by the Constitution (Application to Jammu and Kashmir) Order, 1954, had given protection any law relating to preventive detention in Jammu and Kashmir against invalidity on the ground of infringement of any one of the fundamental rights guaranteed by Part III of the Constitution for a period of five years only.

Subsequently this period was extended to ten years and later to fifteen years by the Presidential Orders dated 1959 and 1964. These extensions were challenged by the petitioner on the ground that the orders making such modifications could not be validly passed by the President under Article 370 (1). Article 370 could only have been intended to remain effective until the Constitution of the State was framed and thereafter it must be held to become ineffective that any modification made by the President subsequent to the enforcement of the Constitution would be without the authority of law.

The above argument was rejected by the Supreme Court and held Article 370 should be held to be continuing in force because the situation had existed when this article was incorporated in the Constitution had materially altered, and the purpose of introducing this article was to empower the President to exercise his discretion in applying Indian Constitution and a reference was also made that Article 368 of the Constitution in its application to State of J&K under which an amendment to the Constitution under Article 368 is of no consequence in the State of J&K unless applied by the President under Article 370 (1).

In the case of Mohd.Damnoo v. State of J&K

The petitioner challenged the validity of his detention under the J&K Preventive Detention (Amendment) Act, 1967, on the ground that the Act is invalid as it has not been assented to by the Sadar-i-Riyasat of the State. On November 16, 1952, the President had made an order substituting another Explanation for the existing one in clause (1) of Article 370, as “For the purpose of this article, the Government of the State means the person for this time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasatof J&K, acting on the advice of Council of Ministers of the State for the time being in office.”

According to the counsel on behalf of the petitioner, neither the State Assembly nor the President were competent to impair the functioning of the Sadar-i-Riyasat of the State unless the Constitution of India was amended under Article 368 and 370 (3) or a fresh Constituent Assembly was convened to amend the Explanation.

The above argument was not accepted by the Supreme Court and the Court explained the following feature of Article 370 (1) (b) and (d) is the necessity of the concurrence of the State Government. Article 370 (1) merely recognised a constitutional position in the State. It was contended Article 370 (1) (b) and (d) places no limitation on the framing or amendment of the Constitution of J&K. basically, it was pointed out that the change in the designation and the mode of the appointment of the Head of the State, the constitutional position in the State remains basically the same and the Governor is the successor to the Sadra-i-Riyasat and can validly exercise his powers as Head of the State.

CONCLUSION

Now, it is crystal clear that the State of J&K has a different Constitution because Kashmir is not a part of India. It is a disputed territory, rather a foreign nation. Legally speaking, as per International Law and UN Charter, any differences between two nations are decided under the UN Charter. Kashmir was always an independent nation, never a part of India in the history too and i.e. the only reason it always leads to a tussle between Pakistan and India. Specifically, related to recognition of Kashmir.

The question of plebiscite doesn’t arise till Pakistan doesn’t withdraw its forces from POK (Pakistan Occupied Kashmir). India has taken a stand that after lapse of so much time, the circumstances within state have changed. Under the changed circumstances, the plebiscite can’t be held and hence, the demand for it is completely unjustified. The view is accepted by most of the nations of the world like USA, UK, France, etc.

With the passage of time, The Constitution (Application to Jammu and Kashmir) Order, 1954was promulgated by the President of India in consultation with the Government of J&K, regulating the constitutional status of the State; and apart from it several Central laws got extended to the J&K State and even the nomenclature of Sadar-i-Riyasat and Prime Minister were changed to Governor and Chief Minister on March 30, 1965.

The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India.

Despite of continuous efforts by various political parties, Article 370 of the Indian Constitution could neither be made permanent nor abolished, so it continues to be as such in the Indian Constitution with J&K having its own Constitution and State flag and resulting into non-application and non-extension of Central laws without approval of the State Legislature

BIBLIOGRAPHY

 P.M. Bakshi, The Constitution of India 336-353, (Universal Law Publishing Co., New Delhi-India, 11thedn., 2011).

 The Constitution of India 312-313, (Eastern Book Company, Lucknow, 3rdedn., 2011).

 S. Anand, The Constitution of Jammu and Kashmir its Developments and Comments, 4thedn., 2003.

 V.N. Shukla, TheConstitution of India 1015-1016, (Eastern Book Company, Lucknow, 11thedn., 2011)

 M.P. Jain, The Constituion of India 859, (Lexis NexisButterworthsWadhwa Nagpur,6thedn., 2011).

 P.M. Bakshi, Part XVIII, Article 352-360, The Constitution of India 319-327, (Universal Law Publishing Co., New Delhi-India, 11thedn., 2011)

 Article 360, The Constitution of India 294-296, (Eastern Book Company, Lucknow, 3rdedn., 2011).

 Wikipedia.

 www.google.com.

 www.unilawbooks.com

 http://www.indiankanoon.org/

 http://www.manupatra.com/

 www.westlaw.com

www.heinonline.com