Roots of J&K Constitution lied in Constitution of India which is surely placed at ‘Higher Pedestal’

DAYA SAGAR

Like some other people expressing opinions about the Indian state of J&K which have been more of myths than truthful constitutional facts it was on 25th November 2013 that as per reports based on an official handout the then J&K Chief Minister had opined on the issues related to Indian state of J&K and the India Democratic Republic even while talking to a European Delegation led by Ambassador and Head of the Delegation of the European Union to India, Joao Cravlnho which had called on him at Srinagar where in among other references the then J&K Chief Minister had also opined like ( quote : “While all the states acceded to Union of India and then merged with it, JK only acceded and did not merge. That is why we have a special status, our own constitution and the state flag,”). But the opinions and inferences like that have not been suitably replied or addressed to or refuted even by the people who represented GOI ( even before that ). Indian Home Minister was expected to immediately attend to the questions and claims made by J&K Chief Minister on 25th September 2013 where he had gone to the extent of discussing the issues of international importance with foreigners (in a way trespassing the limits within what a State of the Union can work). If not all the issues mentioned, atleast subjects like flag, constitution , merger needed to be responded immediately. So, in case the common man of J&K, even some Indian ‘decorated’ social activists (like the Group of Interlocutors on J&K 2010 -Dileep Padgaonkar, Radha Kumar and M M Ansari – who submitted a hurriedly prepared report to the Indian Home Minister on 12th Oct 2012 ) and people beyond Indian borders get carried by such like uncontested claims made even by ‘mainstream’ leaders that should not surprise anyone. Quotes like J&K having a separate flag and a separate constitution w.r.t Union of India surely do not stand to any constitutional facts but since such references have been taken very lightly by Indian leaderships they have surely been able to cultivate some unwanted myths amongst some people. As regards the status of the state flag that has been discussed in earlier parts of this writeup and let us take the subject ( myth) of ‘separate’ constitution here. J&K ‘has’ a separate Constitution like Constitution of India is a well cultivated ‘anomaly’ and Omar Abdullah too has made that . It could be One’s own understanding over the years but cannot be quoted as a Law point. For explanation purpose it could be said that The Constitution of J&K was the “term” used under the circumstances / requirements prevailing at that time for laying down the constitutional procedures as regards the Subjects that would fall in the “Shadow State List” for J&K and other subjects in the respective Union list like were the chapters drawn in Constitution of India for Part- A and Part- B states.
The Constitution of India is the Mother of J&K Constitution which could be well sensed from the objective before the Constituent Assembly of J&K that well reflects from the from preamble of J&K Constitution (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-……”. Whereas the Preamble of Constitution of India said ” We the people of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens……………………..”
It clearly emerges from the Preamble that the J&K Constitution Assembly was not to draw a Constitution for a Sovereign State but it had to only draw out the working methods / procedures for the local operations within the State jurisdictions and with exceptions to the jurisdictions of Central Government/ Union Parliament. The Constituent Assembly was not to draw a Constitution that had to be outside the arena of Indian Nation State.So the roots of J&K Constitution lie in Constitution of Sovereign Democratic republic of India which is surely placed on higher pedestal than constitution of J&K State and no way J&K ‘has’ a separate Constitution of her own. In common man language it could be said that J&K Constitution is extension ( a chapter/ part ) of Constitution of India that contains the constitutional leads concerning the subjects that particularly lie within the executive and constitutional jurisdictions of Indian state Legislature of J&K.
Although a preamble does not form an integral part ( legally) of a constitution and is merely an introduction without legal significance but the preamble is surely a statement of purposes, though not a grant of jurisdiction. From the two texts of preambles mentioned above it is very clear that the J&K Constitution cannot be placed parallel to Constitution of India since the purpose resting in the framing of Constitution of India was to constitute India into a Sovereign Democratic Republic ….. whereas the purpose behind drafting the J&K Constitution was after 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, … ( Note : As was pointed in the leading case of Jacobson v. Mass. (1905) 197 U. S. 11, the preamble is not a part of the constitution but “walks before it.” ).
Yeh Kaha Jaa Sakta Hai Ki Jis Tarah Se Bharat Ke Sambhidhan Mein Alag Alag Bhag Hain Aur Bhag VI (The States) Aur Bhag-XI- (relationship between the union and the states) Anay Rajeon Se Sambandit Hai Esee Tarah Jammu Kashmir Sambhidhan Bharat Ke Sambhidhan Ka Ek Hissa Hai Jisae Bas Alag Dang Se Rakha Geyaa Hai .
So, the procedural provisions to further define the relationship of the State with the Union of India as an integral part ,thereof, kept in the form of Constitution of J&K cannot be quoted as a symbol of J&K having an identity outside Indian Constitution or Indian Nation State in the form of a separate constitution.
(The author is Sr Journalist, social activist and analyst J&K affairs [email protected]).