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JAMMU AND KASHMIR 1 JAMMU AND KASHMIR 23 JAMMU AND KASHMIR Political and Constitutional Development JUSTICE JASWANT SINGH HAR-ANAND PUBLICATIONS 4 Har-Anand Publications 364-A, Chirag Delhi, New Delhi - 110 017 Copyright © Justice Jaswant Singh, 1996 All rights reserved. No part of this publication may be reproduced in any form without the prior written permission of the publishers.

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Page 1: polscie.weebly.com€¦  · Web viewSee : 1950 SCR 869,1957 SCR 682, (1952) SCR 284 1955 1 SCR 224,1955 1 SCR 1004 (1955) 2 SCR 531 (1961) 1 SCR 14. It has to be borne in mind that

JAMMU AND KASHMIR

1

JAMMU AND KASHMIR

23

JAMMU AND KASHMIR

Political and Constitutional Development

JUSTICE JASWANT SINGH

HAR-ANAND PUBLICATIONS

4

Har-Anand Publications

364-A, Chirag Delhi, New Delhi - 110 017

Copyright © Justice Jaswant Singh, 1996

All rights reserved. No part of this publication may be reproduced in any form without the prior written permission of the publishers.

PRINTED IN INDIA

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Published by Ashok Gosain for Har-Anand Publications and printed at Printline, New Delhi.

5

To

Mrs. Leela Wati and Raja Raghbir Singh, noted philanthropists, revered parents of the author, to whose perennial blessings he owes everything that the Merciful

God has been graciously pleased to bestow upon him.

67

Message

Knowing Hon'ble Justice Jaswant Singh so well, since 1975, as a person of great devotion, dedication and erudition, I have great pleasure in invoking the

blessings of the Supreme Sai Baba for his noble literacy venture—Political and Constitutional Development; to benefit the readers of this most valuable

Book.

Invoking the blessings of Baba.

OM SAI RAM.

Thy Own self,

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SAI SEVAK

(NARAYAN BABA)

89

Foreword

The history of Jammu&Kashmir State since its founding by Maharaja Gulab Singh in the middle of the 19th century, has been fascinating, exhilarating and

often tragic. Not many people are aware of the tremendous complexity involved in establishing what became the largest Indian state with an area of over

eighty-four thousand square miles, stretching from the plains of the Panjab right into the heart of Central Asia, and from what is now West Pakistan all

the way almost to the gates of Lhasa. This was one of the great military and diplomatic feats of modern times, and needs to be extensively documented.

While a number of books have come out recently regarding Jammu&Kashmir, they deal mainly with contemporary history starting with the partition of the subcontinent.

However, in order to understand the intricate and multi dimensional geopolitics of this area, it is essential that the earlier documents should also be

carefully studied and understood. Raja Jaswant Singh, who comes from the western town of Mirpur in the erstwhile Jammu&Kashmir State, and whose distinguished

legal career culminated in his elevation as a Judge of the Supreme Court, has rendered signal service by bringing together some crucial documents that

shed light upon political and constitutional developments in Jammu&Kashmir over the last 150 years. I warmly commend his efforts, and am sure that the

book will be of value to students of contemporary history in India and abroad.

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DR. KARAN SINGH

1011

Acknowledgments

My thanks are due to my wife, the rest of the members of my family, specially my two grand-daughters Juhi Singh (final-year student of law) and Kokol Singh

who have continuously been inspiring and goading me to undertake this enterprise, and who have been helping me in hunting the case law and going through

the proofs, and some others who do not like to be mentioned.

My heartfelt thanks are also due to my venerable Gurudev, Shri Narain Baba, not only for his imparting continuous guidance, but also for the kind message

which he has graciously sent to be incorporated in the book. Last but not the least, my grateful thanks are also due to respected Dr. Karan Singh, whom

I have always held in high esteem and who inspite of his multifarious engagements has very graciously written the foreward to the book.

Justice Jaswant Singh

1213

Contents

Introduction 15

Lahasa Agreement (Tibetan Letter of Agreement, 1842) 43

Treaty of Lahore (Dated 9th March, 1846) 47

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Treaty of Amritsar (Dated 16th March, 1946) 49

Agreement between Lahore and Kashmir Darbars, 1847 52

State Subject Definition, (20th April, 1927) 54

Order No. 1 of 1928 regarding High Court 56

(Dated 26th March, 1928)

First Constitution Act 1 of 1991 (Dated 19th April, 1934) 65

Sri Pratap Colsolidation Amendment Act, 76

(Dated 30th November, 1935)

Appeals to His Highness Act 1966 107

Jurisdiction of Civil Courts regarding State Subject 115

Certificate Cases

Letter Patents 1985 (Dated 28th August, 1943) 117

The Indian Independence Act, 1947 127

Indian Adaptation of Existing Indian Laws Order 1947 153

Indian Provisional Constitution Order, 1947 158

Instrument of Accession (27th October, 1947) 185

Appointment of Sheikh as Head of Emergency Admn. 189

Order No. 176 H of 1947

14 Appointment of Bakshi Gulam Mohd. as Officiating 190

Head of Admn.

Resumption of Jagirs Order No. 6-H of 1951 192

(Dated 10th March, 1951)

Barring of Civil Courts Jurisdiction in respect of 199

State Subject Certificate

Maharaja Hari Singh's proclamation appointing 201

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Yuvraj Karan Singh as Regent (Dated 20th June, 1949)

Dr. Karan Singh's proclamation appearing in 202

White Paper on Indian states

Yuvraj Karan Singh's proclamation regarding setting 203

up of Constituent Assembly (Dated 20th April, 1951)

6-Point Indira-Sheikh Pact of 1975 234

Constitution of Jammu and Kashmir 246

(Dated 26th October, 1947)

Directive Principles of State Policy 249

Fundamental Rights 329

Home Secretary's Note 347

15

Introduction

This compilation is a compendium of a large number of documents of considerable political and constitutional significance collected by the author after

an arduous and elaborate research extending over several decades.

State has cradled and nurtured many diverse religions and cultures in crucible history. It has been a victim of hoards of invaders, merceneries and eventual

settlers from various parts of the world. In order to appreciate and understand the present we must look to the past through which the State has travelled.

With that in mind, I would briefly refer to past though I have no claims as a historian. I have culled out the material relating to the history of various

parts of the State from Calcutta Gazetter of 1857, Rajtarangi by Kalkhan and History of Kashmir by Bamzai. At the threshold, however, I would refer in

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passing to the main articles of Treaty of Amritsar which appears to me of fundamental importance before taking up the events from the pages of history

which overtook each of the major regions of the State.

The main idea of putting the documents together in one place in the shape of the book is to make them easily accessible to the reader so that he may not

spend his valuable time in searching the same as some of the documents have become rare and difficult to locate. The misgivings about the constitutional

status of Jammu and Kashmir in certain quarters in due to lack of awareness of the agreements and documents of great political and constitutional significance.

The documents contained in this volume bear testimony to the irreversible and unquestionable integration of the State with India. They capture the history

of the State including political and constitutional. While talking of the

16

current history one may not completely overlook the past as otherwise the canvas depicting the picture will not be complete.

The real history of the modern State of Jammu and Kashmir which is situate in the extreme north of the Indian Sub-Continent begins with the treaty of Amritsar

concluded on the 16th of March, 1846 between the British Government on the one part and Maharaja Gulab Singh on the other. Main features of the treaty

were contained in Articles 1, 3, 6, 8&10.

According to Article 1 of the Treaty the British Government transferred and made over for ever, in independent possession, to Maharaja Gulab Singh and the

heirs male of his body, all the hilly mountainous country, with its dependencies, situated to the eastward of the river Indus and westward of the river

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Ravee, including Chamba, and excluding Lahul, being part of the territories ceded to the British Government by the Lahore State, according to the provisions

of Article 4 of the Treaty of Lahore, concluded on 9th March, 1846.

Article 3 of the Treaty of Amritsal required Maharaja Gulab Singh to pay to the British Government in consideration of the said transfer made to him and

his male heirs seventy five lakhs of rupees (Nanukshahee), fifty lakhs were to be paid on ratification of the treaty and twenty five lakhs on or before

the first of October of the year 1846 A.D.

By Article 6 of the Treaty, the Maharaja undertook for himself and his said heirs to join, with the whole of his Military Force, the British troops, when

employed within the hills or in the territories adjoining his possessions.

By Article 8 of the Treaty, Maharaja Gulab Singh also undertook to respect, in regard to the territory transferred to him, the provisions of Articles V,

VI and VII of the separate engagement between the British Government and the Lahore Durbar, dated March 11, 1846.

By Article 9 of the Treaty, the British Government undertook to give its aid to Maharaja Gulab Singh in protecting his territories from external enemies.

17

By Article 10 of the Treaty Maharaja Gulab Singh acknowledged the supremacy of the British Government and in token of such supremacy to present annually

to the British Government one horse, twelve perfect shawl goats of approved breed (6 male and 6 female) and three pairs of Cashmere Shawls.

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The said Treaty was ratified by the seal of Sir Henry Harding, G.C.B. Governor General of India.

By agreement between the Lahore and Kashmir Durbars concluded in 1847, it was agreed that with a view to prevent all future disputes the eastern boundary

of the tract transferred by the foregoing to Maharaja Gulab Singh would be laid down by Commissioners appointed by the British Government and Maharaja

Gulab Singh respectively for that purpose, and would be defined in a separate engagement after survey, in regard to the exchange of the Districts of Hazara,

Pukli, Kahuta, etc. west of the river Jhelum for lands east of that river in the direction of Jammu.

After duly examining the revenue records of the country, west of the Jhelum and after deducting Jagirs and rent free lands, Captain Abbott, the Boundary

Commissioner fixed the yearly rent, where after lands producing half that rent were made over to Jammu from the Lahore territory. Captain Abbott accomplished

the task assigned to him by laying down a well defined boundary on the west of the Jhelum river to the Border of Muzaffarabad, whence following the Kurnaha

River he marked the line across to the river Indus.

On the 15th August, 1947, when the paramountcy of the British Crown lapsed, Jammu&Kashmir was the largest autonomous princely State under the suzerainty

of the British Crown covering an area of 84,471 square miles. It comprised* five clearly demarcated ethnic linguistic regions viz. (1) Hindu dominated

Jammu, consisting of six districts including Doda, (one of the hot centres of militancy) which by itself is larger than the valley, (2) the most populous

predominantly

(*) See The Article entitled 'Jammu Factor' by Dr. Karan Singh published in the issue of Hindustan Times dated New Delhi, Tuesday August 1, 1995.

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18

Muslim unique Happy Valley of Kashmir, which is the smallest of the five regions. The name Kashmir is derived from the Sanskrit words Ka, which means water

and 'Shamira', which means to drain. The theologists have confirmed that the valley was once a lake and when it dried up it became habitable. In 1149,

Kalhana who wrote the history of Kashmir, in verse form observed that "such is Kashmir, the country, which may be conquered by force of spiritual merit

but not by armed force", (3) the larger northern areas consisting of Gilgit, Baltistan and other smaller entities, (4) the vast area of Ladakh, which constitutes

three quarters of the land area of the State, is a land of Buddhist Lamas and monasteries and is famous for its pashmina wool, shawls, minerals, horses,

apricots, lacquer work etc, (5) the western area including the districts of Muzaffarabad and the prosperous Mirpur.

The State occupies a position of great strategic importance, being bounded on the north east by Tibet, on the north by Sinkiang, Vygur, an autonomous region

of China, on the northwest by Pakistan and South west by Afghanistan. In this state, Hindu, Sikh, Muslim, Christian and Buddhist ethnic communities lived

in concord, harmony and peace till 1987 A.D. where after there was an outbreak of insurgency and militancy sponsored aided, abetted, armed, funded and

fanned by Pakistan.

Jammu Region

In this region, Jammu, which is the principal city, is picturesquely situate on the summit of a sloping ridge. It is popularly known as a City of temples.

It is the Winter Capital of the State and the Administrative Headquarters of Jammu District. Its history dates back to the epic and puranic period. After

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several vissitudes, Jammu principality came to be reckoned as the most important and powerful of the 22 tiny Dogra principalities. The word 'Dogra', is

a corruption of the Sanskrit word "Dogirath", which means two lakes. In the instant case the two lakes known by the names of 'Manser' and 'Siroinsar' which

lie to the east of the city have given its inhabitants the appellation—'Dogra'. In the 18th century Jammu Principality acquired importance due to the stable

19

Government given to it by its enlightened and dynamic ruler, Raja Ranjit Deva, son of Dhruv Deva, who proclaimed himself as ruler of the principality in

1750. Ranjit Deva, who has been described as a just and wise ruler by George Foster who stayed in Jammu in 1783 during the reign of Ranjit Dev's son, Brij

Raj Deva continued to play a prominent part in the politics of Jammu and outside for a period of 31 years. The chaos following the decline of the Mughal

Empire furnished him an opportunity to extend his authority over all the hill States situated between the Chenab and the Ravi as also some others which

lay in the west of the Chenab. The kingdom of Ranjit Deva, thus extended to the plains bordering Northern Sialkot. It would be of interest to mention that

Ahmed Shah Abdali (for brief 'Abdali') who had annexed Kashmir gave a Jagir to Ranjit Deva, in recognition of the active support that the latter gave to

the former against the author's illustrious ancestor Raja Sukhjivan, Abdali's Governor or Vicerory in Kashmir, who became ruler of Kashmir by declaring

his independence from Afghanisthan in 1754. Sukhjiwan has been described by some historians as a perfect gentleman, truthful, above narrow sectarian and

religious bigotory and a man of high literary taste. The independence declared by Sukhjiwan by Abdali to an attack by the army of Abdali which Sukhjiwan

was able to repulse. However, in the second attack mounted soon thereafter by Abdali's forces. Raja Sukhjivan was defeated and captured as some of his

own treacherous, followers defected to the enemy. After being captured Raja Sukhjiwan was whisked off as a captive to Delhi where he was trampled under

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the feet of elephants and brutally and mercilessly assassinated under the orders of Abdali.

Due to the peaceful administration that Ranjit Deva was able to give to his subjects when all around chaos and insecurity prevailed, Jammu became a hub

of trade between Afghanistan, Central Asia, Kashmir Valley and the rest of India. During Ranjit Deva's rule leading bankers and businessmen from Lahore

and Delhi are stated to have set up their branches at Jammu, which thus acquired an importance and prosperity it had never known before.

20

The independence which Jammu enjoyed under Raja Ranjit Deva did not last long as it was subjugated by the Sikhs under the leadership of Jhanda Singh of

the 'Bhangi'a Sikh Misl which led a strong army against Ranjit Deva in 1780 and went back only after exacting a tribute from him. Ranjit Deva died soon

thereafter.

On the death of Raja Ranjit Deva there was a war for succession in which his son, Brij Raj Deva, ascended the throne. But being too weak he could not withstand

the power of his Sikh neighbours for long. Labouring under a false sense of complacency and security because of the alliance which he had forged with Mahan

Singh, father of Maharaja Ranjit Singh, and leader of 'Sukarchakia Misl', Brij Raj Deva thought of regaining some of the estates which had been earlier

lost to the Bhangi Sardars but the latter conspired and secured the help of another Sikh Misl known as 'Kanheya Misl' with the result that Mahan Singh

and Brij Raj were defeated and compelled to pay tribute. A few months later the two rivals Mahan Singh and the Chieftain of 'Kanheya Misl' made a common

cause and attacked Jammu on the pretext that the said tribute had fallen into arrears.

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Forgetting his vows of friendship with Brij Raj, Mahan Singh assisted by the Chieftain of Kanheya Misl ransacked Jammu and compelled Brij Raj to surrender

and pay an annual tribute of Rs. 50,000 /-. Thereafter Raja Brij Deva's power declined rapidly and even the semblance of governmental authority which he

exercised vanished with the result that his hold on the hilly interior districts disappeared.

On his death Brij Raj Deva was succeeded by his one year old son, Sampuran Deva, under the guardianship of Mian Mota, a cousin of Brij Raj Dev. Sampuran

Singh died at the early age of 11 and was succeeded by Jit Singh, the son of Brij Raj Deva's younger brother, Dalel Singh. As Raja Jit Singh lacked the

capacity to rule, the administration passed into the hands of his wife, who is said to have been an ambitious and intriguing lady.

Finding the Jammu State torn by internal conflicts and dissensions, Maharaja Ranjit Singh directed his trusted lieutenant, Hukam Singh, in 1803 to launch

an attack on Jammu

21

which was accordingly annexed to the Sikh State. Thus, the whole province of Jammu came under the Lahore Government. It was only after the year 1815 that

Jammu principality was retrieved by another adventurous and brave scion of the dynasty namely, Raja Gulab Singh, son of Mian Kishore Singh, grandson of

Surat Dev, a younger brother of Ranjit Deva who had a jagir to the south of Jammu near Samba, by his remarkable bravery and diplomatic skill.

In 1809, when after being superbly trained by his grandfather he could wield the sword with great dexterity, Gulab Singh left for Lahore where he was recruited

as Commander of a small force in Maharaja Ranjit Singh's army. This was a year of great historic importance as it was in that year that Maharaja Ranjit

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Singh feeling secure because of a treaty with the British Government launched several campaigns against the Afghans in which Gulab Singh distinguished

himself as a great military commander and fearless warrior. In the ill fated expedition of 1814 against Fateh Khan, the Afghan ruler of Kashmir, though

the Sikhs had to surfer defeat and beat a retreat, Gulab Singh earned a great name as a valiant military leader and a formidable soldier by remar-shalling

the remaining forces and leading them back in safety.

Next year in the siege of Jallundhar, Gulab Singh who again distinguished himself was awarded an additional Jagir. Then again in the siege of Multan, Gulab

Singh displayed great heroism and successfully recovered the dead body of one of Ranjit Singh's favourite Sardars in the thick of fighting by risking his

own personal safety for which he was highly praised by his Master who came to regard him as one of the most trusted and able generals. Gulab Singh's brother,

Dhyan Singh, also rose in the estimation of Maharaja Ranjit Singh, who appointed him to the important post of Grand Chamberlain. Thereafter, Maharaja Gulab

Singh was not only successful in capturing the Raja of Rajouri who was fighting the Sikhs but also in ridding Ranjit Singh of Mian Dido, a dreaded terrorist

who used to harass Ranjit Singh's forces in Jammu District. When Mian Dido launched an assault on the Sikh garrison stationed in Jammu Fort with the help

of some Jammu Chiefs and their Dogra followers, Gulab Singh inflicted a crushing blow on those who supported Mian Dido

22

and drove him to the summit of the hill where he was shot dead by Gulab Singh's soldiers. This act of Gulab Singh's great bravery and wise strategy convinced

Ranjit Singh of the former's ability to administer the difficult province of Jammu. Accordingly, in 1820, Ranjit Singh gave Jammu province to Gulab Singh

in farm and on the latter's representations that it was not possible to collect the revenues without use of force, Gulab Singh was allowed to raise and

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retain an army of his own and was conferred the title of Raja. In 1821, Gulab Singh was also successful in conquering Kishtwar, subjugating Rajouri and

capturing its ruler who had played foul with Ranjit Singh by misguiding him in his invasion of Kashmir.

For all the aforesaid distinguished services, Maharaja Ranjit Singh rewarded Gulab Singh by granting to him and his successors the principality of Jammu

with the hereditary title of Raja. Maharaja Ranjit Singh was so greatly pleased with Gulab Singh that he personally presided over the latter's installation

ceremony at Akhnur. Dhyan Singh and Suchet Singh, the brothers of Gulab Singh, were also rewarded for their distinguished services. While the former got

the principality of Poonch, the latter obtained that of Ramnagar.

Being a person of great determination as also a strong and able ruler, Gulab Singh consolidated his acquisitions, restored order in the State and put it

on the road to prosperity. Taking advantage of the wherewithal at his disposal as a result of the rise in his power and prestige he turned his attention

to extending his own authority over the distant mountainous areas of Ladakh and Baltistan which he conquered in 1834 and 1841 respectively with the help

of his capable and dedicated general, Wazir Zorawar Singh, a talented and scruplously honest Commander. King Gyalpo of Ladakh was made to surrender and

pay an indemnity of Rs. 50,000/- and a yearly tribute of Rs. 20,000/- to Gulab Singh.

Not content with his aforesaid conquests Gulab Singh sent Zorawar Singh in 1841 with a force of 5000 towards Lahasa to conquer Tibet. Though he was successful

in over running the two provinces, of Rudok and Gar, his force which was not used to the rigorous cold climate was routed by

23

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the Lahasa Army when it was at a height of 15,000 feet. Zorawar Singh was also killed while fighting gallantly. After this defeat of Zorawar Singh, Ladakh

was re-occupied by the Tibetan army. Gulab Singh who could not reconcile himself with this defeat, then sent his troops the very next year under the command

of Dewan Hari Chand and Wazir Rama to reconquer Ladakh. This time the operation which was personally directed by Gulab Singh from Srinagar was successful

with the result that the enemy was deadly mauled and made to surrender and enter into a treaty. The Lahasa has been reproduced in earlier pages whereby

Ladakh permanently came under the sway of the Dogra Rule. As per Kalhan's celebrated 'Raj Tarangani' even long before this event the famous King Lalitaditya,

a Hindu ruler of Kashmir, had succeeded in conquering Ladakh and annexing it to his kingdom. Lalitaditya's Ladakh conquest it is said, used to be celebrated

every year in Kashmir for many years on the 2nd of the Bikami month of Chaitra.

Interestingly Rinchin Shah, an adventurer from Ladakh and a distinguished soldier of the Kashmir army, who impressed by the teaching of Bulbul Shah, a Muslim

saint, embraced Islam and adopted the name and title of Sultan Sadruddin ruled over Kashmir from 1354 to 1373 and brought Ladakh and Baltistan under the

sway of Kashmir by defeating the ruler of Kashghar. Ladakh also remained a dependency of Kashmir under Sultan Sikandar of Kashmir who ruled from 1389 to

1413 as also under his son, Zainulabdin, a benign ruler who was affectionately called as 'Badshah'. After the death of Zainulabdin, Ladakh was occupied

by Sajjid Khan of Kashghar. It was a chak ruler of Kashmir named Ghazi Chak, who reigned from 1561 to 1563, and brought Ladakah under his sway through

his Governor.

On Kashmir's becoming a part of the Indian Empire under the rule of Mughals in 1586 Ladakh also fell under their sphere of influence. After the collapse

of the Mughal Empire which lasted for 166 years, Kashmir passed into the hands of Afghans along with Ladakh till it was conquered by Gulab Singh in 1835.

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24

Aftermath of Maharaja Ranjit Singh's death

The death of Maharaja Ranjit Singh in 1839 was marked by acrimony among his heirs for acquiring the throne. In the wake of anarchy in which the country

was plunged, there were political murders, treachery and conspiracies. It seemed that nature was also playing its part in the sordid drama. Two of the

three heirs who ascended the throne died in quick succession due to natural causes while the third, Sher Singh, was assassinated where after Duleep Singh,

nine year old son of Ranjit Singh, was placed on the throne under the tutelage of his mother, Rani Jindan alias Jindan Kaur. This was achieved with the

help of Suchet Singh, another brother of Gulab Singh, who commanded a large sikh force. In the power struggle not only Sher Singh but his trusted Minister

Dhyan Singh, another brother of Gulab Singh also met the same fate.

In the fast changing political scenario the loyalties were also changing at the same pace. While Suchet Singh was also killed in a bid to gain control of

the turbulent Sikh army, the relations of Gulab Singh with Rani Jindan and her paramour, Lal Singh, who were at the helm of affairs at Lahore, became strained.

The latter sent a huge Sikh force against Gulab Singh. Initially Gulab Singh gave a fight but later on he submitted to the might of the invading army.

He was captured and sent to Lahore from where he escaped and fled to Jammu. In the meantime, war broke out between the forces of Rani Jindan and the British.

Realizing the valour of Gulab Singh, Rani Jindan invited him to lead the Sikh army in the fight against the British troops but Gulab Singh declined the

offer due to the treatment meted out to him and his brothers. As the sikhs were about to lose the fight there was great pressure from the Lahore Government

for the return of Gulab Singh. Being an astute statesman Gulab Singh could forsee the baneful consequences of the war for the sikhs. As the defeat of the

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sikh army was imminent and clear like the writing on the wall he considered it advisable to enter into negotiations with the British for securing peace

with honour.

25

The British also realized the advisability of winning over Gulab Singh who had under him a highly trained and disciplined force of Dogras, known for their

military prowess and superb valour in war, which could serve their interests. In the past they had witnessed the bravery of this Dogra fighter when the

British garrision at Jalalabad was besieged by the Afghans in 1841. It was because of his bravery in leading a Sikh Army that the British were able to

succeed against the Afghans. The valour and the valuable service rendered by him earned their respect and gratefulness. The British, through Sir Henry

Lawrence (then Major Henry Lawrence) sent for Gulab Singh and assured him that he will be recognised as an independent ruler of Kashmir. As a result of

the negotiations which Gulab Singh had with the British, he was able to secure reasonable terms for Duleep Singh. For himself he secured two treaties :

'the one at Lahore signed on 9th March, 1846 recognising his (Gulab Singh's) sovereignty over the territory in his possession and certain other hill districts;

and the other mentioned heretofore, signed at Amritsar on 16th March, 1846 between Maharaja Gulab Singh and the British Government by which the Maharaja

was accorded the status of a Regent.

Gulab Singh was succeeded by his son, Maharaja Ranbir Singh, who founded 'Dharamarth Trust', built many beautiful temples including the famous Sri Raghunath

temple at Jammu and established in the complex thereof a Sanskrit College equipped with a huge library and other requisite infrastructure. Learned Pandits

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from far and near used to visit this library to carry on their research. Maharaja Ranbir Singh also established an apex court of appeal and revision called

the 'Adalat-ul-Alia' to enable the aggrieved litigants to seek substantial and even handed justice.

Maharaja Ranbir Singh's successor, Maharaja Pratap Singh, was a shrewd and devoutly religious person who ascended the throne in 1885. He, however, became

a victim of intrigues and fabricated charges in consequence whereof he was virtually deposed in 1887 when the administration was entrusted to a council

of ministers consisting amongst others of Maharaja's brother, Raja Ram Singh, under the supervision of a British

26

Resident who was imposed on him (i.e. the Maharaja). This act of the British Indian Government which was highly unjust, blatantly in violation of the Treaty

of Amritsar as well as contrary to the solemn declaration of the Queen Empress was stridently resented by the vernacular press in the neighbouring province

of Punjab with the result that the Maharaja was restored to the throne. In 1891, while the Maharaja was allowed to assume the president ship of the council,

his brother Raja Amar Singh, the father of Maharaja Hari Singh, became the Vice President of the council. In 1905, the council was abolished and the Maharaja

assumed full administration of the State. He adapted many of the Acts in force in British India by enacting Sri Partap Jammu and Kashmir Laws (Consolidation)

Act VI of 1992 (Samvat). Maharaja Partap Singh's reign was marked by the imposition as stated above, of a British Indian Government for interference in

the internal administration of the State which Maharaja Ranbir Singh had successfully resisted. A British political agent invested with the power to exercise

some degree of supervision over the Maharaja's Wazarat (Subdivision) of Gilgit also came to be appointed. He was made directly responsible to the government

of India for administration of the outlying petty states. The British Indian Government also posted an officer to assist in the supervision of the Central

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Asia Trade.

The fourth in the line of succession was Maharaja Hari Singh, the Commander-in-Chief of the State forces during the reign of his uncle, Maharaja Partap

Singh. He was an intelligent and highly educated prince. He was also a great patriot which is manifested from the impassioned speech which he delivered

at the Round Table Conference urging the British Government to grant independence to India. The contents and tenor of this speech gave great umbrage to

the British Government as a consequence whereof he had to suffer great hardships. Being an enlightened and benign ruler he had a great solicitude for the

welfare of his subjects as can be gleaned from the fact that he conferred a number of boons on his subjects by enacting various pieces of legislation to

relieve them of the heavy burden of indebtedness under which they were groaning. Although all the lands belonged to him

27

in his capacity as an absolute ruler by virtue of the purchase which his illustrious ancestor, Gulab Singh, had made by means of the famous treaty of Amritsar

he initially conferred occupancy rights on the tillers of the lands to mark his ascent to the throne. Later on he conferred full proprietory rights of

the lands in possession of the occupancy tenants. This indeed was a great act of benevolence which even Akbar, the Great, failed to display.

The Maharaja also built roads and hospitals both at Srinagar and Jammu besides doing a lot for the removal of illiteracy and spread of higher education.

He gave an independent judiciary not only by establishment of the High Court of Jammu and Kashmir consisting of Chief Justice and two Puisne Judges by

Order No. 1 of 1928 dated 26th March, 1928 but also by setting up in October 1939 an apex tribunal called 'His Highness Board of Judicial Advisors' manned

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by capable and up right retired Judges of the famous High Courts of British India on the lines of the Privy Council by Act No. XVI of 1939. The example

set up by him was followed by some other princely states like Hyderabad etc. The aforesaid Tribunal was superseded and wound up on the coming into force

of Delhi Accord which was followed by issue of the Constitution Application to Jammu&Kashmir Order by the President on 14th May, 1954 as a result whereof

the jurisdiction of the Supreme Court was extended over Jammu&Kashmir. Soon after the coming into force of the aforesaid Constitution Application to Jammu&Kashmir

Order of 1954, a bench of three eminent judges of the Supreme Court, comprising Chief Justice Mr. Justice Mehr Chand Mahajan, Mr. Justice S.R. Das and

Mr. Justice Ghulam Hassan sat at Srinagar for about two to three weeks to dispose of the appeals left pending by the erstwhile His Highness' Board of Judicial

Advisors.

Though Maharaja Hari Singh did a good deal to improve the lot of his subjects and associated them with administration of the state, he had the misfortune

of being misunderstood because he could not establish rapport with the common people and failed to open channels of communication, so necessary to win

popular esteem.

28

With a view to open avenues of employment for the subjects of his state he laid down a definition of the term 'State Subject' by Order No. 1 of 1984 (Samvat

Year) ordaining thereby that the decision of a revenue authority invested with the power to grant or refuse or revoke state subject certificates would

not be open to review by a civil court. As a result of this definition the State subjects became entitled not only to purchase immovable property in the

State but also become eligible to enter into the state service.

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In 1931 (A.D.) because of the banner of revolt raised by a band of young Muslim enthusiasts who returned to the state after receiving higher education from

the Muslim University at Aligarh and because of the pressure of the British Indian Government he appointed a commission under the Chairmanship of B.G.

Clancy who belonged to the Foreign and Political department of the British Indian Government to go into the grievances of his subjects, particularly those

belonging to the Muslim community. It was as a result of the recommendations of the commission that he enacted the constitution of 1996 (Samvat) (1940

A.D.) where under he established a Legislative Assembly called Traja Sabha' consisting of 75 members, 33 of whom were to be elected by different communities.

The constitution of 1996 (Samvat) ushered in a system known as Dyarchy on the lines of Government of India Act of 1919 where under while numerous subjects

were transferred to the Praja Sabha, the Maharaja retained quite a number of them himself. Though it was open to the members of the Legislative Assembly

to ask questions, move resolutions, introduce bills and discuss the State Budget, the unhappy feature of the constitution was that the Prime Minister of

the State enjoyed the power to return to the Praja Sabha for reconsideration a bill passed by it and could recommend any amendment therein. Another unhappy

feature was that on failure of the 'Praja Sabha' to pass the bill as recommended, the Maharaja could enact the recommended legislation by declaring that

the same was essential for the good government of the State. "

29

Taking a cue from and inspired by vigorous movement launched by the Indian National Congress against the British to Quit India, Sheikh Mohd Abdullah (for

brief 'the Sheikh'), the President of the National Conference, and his eminent associates like Bakhshi Ghulam Mohammed, Saqiq, Mir Qasim and others started

a campaign in 1946 against the Dogra rule in the State urging the Maharaja to quit the State. In the course of the said campaign the Sheikh delivered highly

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inflammatory, provocative, and seditious speeches for which he was hauled up and made to stand his trial before a special forum presided over by Mr. Barkat

Rai, a fairly senior Judicial officer, of the status of a Sessions Judge. The trial of the Sheikh was held in accordance with a special procedure under

which commitment proceedings were not required to be taken. The prosecution in the case was represented by a team of lawyers headed by Mr. Sethi, an eminent

criminal lawyer from Lahore who was assisted by Mr. Madhu Sudhan Kak, the then Advocate General of the State, as well as the author as a special public

prosecutor. The defence was represented by Mr. Asaf Ali, a Senior Counsel from British India and a couple of other lawyers. The trial which was often attended

by Pt. Jawahar Lal Nehru ended in the conviction and imprisonment of the Sheikh. After his release from prison the Sheikh was appointed as the head of

the Emergency Administration and eventually as the Prime Minister of the State.

On the eve of the Independence of India, the United Kingdom exercised suzeranity over 560 Princely States which were semi-independent and were protected

by the United Kingdom by the doctrine of Paramountcy. According to this doctrine the King of England and Emperor of India was the paramount lord as far

as these Princely states were concerned. In return for the fealty (loyalty) pledged by them, the King Emperor afforded them protection. By enactment of

the Indian Independence Act in 1947 the British not only transferred power to the people of India, but also put an end to para-mountcy, leaving it to the

Princes to make such arrangements as they deemed proper with the dominion of India or with that of Pakistan. It provided that every princely state

30

was free to accede either to India or to Pakistan, by executing an instrument of accession which had to be accepted by the concerned Governor General. The

British Government also made it distinctly clear that the partition was only of British India which did not apply to Princely States like Kashmir and several

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others which were ruled by Indian Princes. It would be profitable to quote here the British Government's announcement of June 3, 1947 which read as follows

: "His Majesty's Government wish to make it clear that the decisions announced about partition relate only to British India and that their policy towards

Indian States contained in the Cabinet Missions "Memorandum of 12th May, 1946 remains unchanged".

The fact that the British conceded the right to the state to enter into federal relations either with India or Pakistan is manifest from a perusal of the

Cabinet Mission's Memorandum which read as follows :

"His Majesty's Government will cease to exercise the power of paramountcy. This means that the right of the states which flow from their relationship to

the Crown will no longer exist and that all the right surrendered by the States to the paramount power will return to the States. Political arrangements

between the States on the one side and the British Crown on the other will be brought to an end. The void will have to be filled either by the States entering

into a federal relationship with the successor Government or Governments in British India, or failing this, entering into particular political arrangement

with either of them". It would also be useful to refer to the following provision for accession which was inserted in the Government of India Act of 1935

as adapted under the aforesaid Indian Independence Act of 1947.

"An Indian State shall he deemed to have acceded to the dominion of India or Pakistan if the Governor General has signified his acceptance of an instrument

of accession executed by the Ruler thereof".

31

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Ironically though significantly in or about the middle of August 1947, Mr. Jinnah, who became the Governor General of Pakistan, wrote to Maharaja Hari Singh

conveying to him that as sovereign and absolute ruler of his state he was free to accede to any dominion.

From the foregoing it is crystal clear that a ruler of princely state was given unbridled and unfettered power to accede to either of the two dominions

by executing an instrument of accession. The only rider was the acceptance of the instrument by the Governor General.

Feeling greatly perplexed over the grave problem of accession because of several factors including the economic blockade of the State by Pakistan which

stared him in his face and heavily exercised his mind, the Maharaja wanted to gain time to give his thoughtful and mature consideration to the vexed question

of accession. Accordingly, he entered into standstill agreements both with Pakistan and India. Unfortunately, before the ink on the standstill agreement,

which he had entered into with Pakistan, could dry up the tribal raiders, aided and abetted by Pakistan, and armed with highly sophisticated weapons, arms

and ammunition suddenly launched a full scale attack on the dominions of the Maharaja making the prosperous and affluent towns nay the districts of Mirpur

and Muzzafarbad as their main targets. In the holocaust of the aggression on Mirpur, the author's home town, and as a result of the raiders merciless depredations

and pillage, he sustained colossol loss. He was deprived not only of the patrimony in the form of huge landed and other immovable property belonging to

his parents but also of the valuable movable property including the precious gold and jewellery etc. It is with deep sense of anguish that the author is

impelled to mention that in the assault on Mirpur which teemed with wealth and prosperity, and the population whereof had swelled from about 12,000 to

20,000 as a result of the migration of Hindu refugees from West Pakistan, the author's revered parents, his highly educated two young sisters, his promising

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younger brother who was in the final year of M.B.B.S. class of the Medical College at the only Amritsar, his bright brother-in-law, (sister's husband),

the only son of state's legal remembrance, who

32

was Public Prosecutor at Mirpur and other kith and kin were brutally killed on the black day of October 26, 1947. The massacre of his kith and kin and the

stupendous loss suffered by the author completely bewildered him and, rendered him, a destitute orphan.

It would be of interest to mention that the premier affluent district of Mirpur also comprised Mangla, famous for its fort which enshrined a deity worshipped

by devout Hindus, where Pakistan has built a dam over the Jhelum river, which drained the Maharaja's territory as well, thus depriving the State of a very

valuable natural resource.

Apprehending total extinction of his State as a result of the unprovoked aggression and economic blockade by Pakistan notwithstanding the standstill agreement

which he had entered into with it and realizing the magnitude of the risk to which the lives and honour of his subjects and their women folk were exposed,

Maharaja Hari Singh, on the advice of his sagacious Prime Minister, Shri Mehr Chand Mahajan, and with the active support of "the Sheikh", the unquestioned

leader of the National conference, the premier political organisation of the State, was left with no other alternative than to execute (pursuant to the

provisions of the Government of India Act, 1935, as adapted by the aforesaid Indian Independence Act, and in exercise of His Sovereignty) the instrument

of accession in favour of India, on the 26th of October, 1947 which was accepted by Lord Mountbatten of Burma, Governor General of India on 27th of October,

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1947, declaring that he was acceding to the Dominion of India with the intent that the Governor General of India, the dominion legislature, the Federal

Court and any other dominion authority established for the purpose of the Dominion would, by virtue of his Instrument of Accession but subject always to

the terms thereof and for the purposes of the Dominion exercise in relation to the State such functions as may be vested in them by or under the Government

of India Act, 1935 in force on 15th August, 1947. A graphic account of the events leading to the execution of the Instrument of accession by Maharaja Hari

Singh, is given by Dr. Mehr Chand Mahajan who was then the Prime Minister of the State in his autobiography entitled "looking back".

33

A careful examination of the provisions of the. Government of India Act, 1935 as adapted by the Indian Independence Act, 1947 would go to show beyond any

shadow of doubt that on the execution of the Instrument of Accession and its acceptance by the Governor General of India, the accession of the State became

absolutely indissoluble and complete resulting in the State becoming an integral part of the Union of India. Though supported by USA, Pakistan has been

and continues to carry an interminable, relentless, malicious and strident campaign against the aforesaid accession in the domestic as well as international

forums, it does not detract even a jot from the stark reality of the matter.

It would be pertinent to state here that even the arbitrary, unwarranted, futile, irrelevant, irrational and extraneous requirement superimposed by Lord

Mountbatten for ascertaining the will of his subjects by the Maharaja on the return of normalcy in the State has been duly complied with as shown hereafter.

After acceding to the Dominion of India, Maharaja Hari Singh set up an emergency administration with the Sheikh, as its head with power to deal with emergency

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vide order 176H of 1947 dated 30th October, 1947. Shortly thereafter the Sheikh was appointed as Prime Minister of the State. Nearly six months thereafter

Maharaja Hari Singh was made to leave the State on account of some unfortunate political developments. The ostensible reason, viz. 'grounds of health'

given out for the Maharaja's leaving the state and entrusting its administration to his son, Yuvraj Karan Singh, who was designated as Regent with plenary

executive, legislative and judicial powers, was entirely a fib wholly divorced from truth.

Quite sometime prior to his departure from the state to spend his last days in virtual exile Maharaja Hari Singh had conceived the plan of convening *National

Assembly on the basis of Adult Franchise for the purpose of ascertaining the will of his subjects and framing a new constitution

* The early History of Kashmir has been recorded in the celebrated work of great poet Kalhana.

34

for the state in the context of changed scenario. The aforesaid plan given vent to by Maharaja Hari Singh by means of his proclamation dated April 5, 1948

was implemented by his capable young son and Regent, Dr. Karan Singh, affectionately called as 'Tiger' by the Maharaja by means of order dated 20th April,

1951.

Significantly by Section 3 of the Constitution of 1957, Sections 2 to 8 and 158 came into force on 17th November, 1956 and the rest on 26th January, 1957

which as regards the relationship of the State with the Union of India was enacted as a result of the recommendations of the 'National Assembly' (Constituent

Assembly) of the State, it was unequivocally, and emphatically declared that the Composite State of Jammu&Kashmir is and shall be an integral part of the

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Union of India. As regent Dr. Karan Singh devotedly adhered to the declaration of his father as contained in the Instrument of Accession. This is manifest

from the proclamation dated 25th November, 1948 issued by him on the eve of the adoption of the Constitution by the Constituent Assembly of India declaring

and directing thereby that the said Constitution will govern the constitutional relationship between the State and the contemplated Union of India and

shall be enforced by him in the State.

Kashmir

Kashmir, popularly known as Paradise on earth is described by Walter Laurence in Chapter VI of his book entitled "Valley of Kashmir" as holy land of Hindus.

It is situate in the Himalayas at an average height of 6000 ft. above the sea-level. It is nearly 84 miles in length and 20-25 miles in breadth. It is guarded

from the outside world on the north, east and west by a number of mountain ranges. In the south it is cut off from the erstwhile Punjab by rocky barriers

50 miles in width. It is drained by the river 'Jhelum' (also known as "Watasta") which joins the Kishen Ganga river at Muzzafarbad. Some of the aforesaid

mountains like Mahadeo and Amarnath are held in deep reverence by Hindus from all over India and abroad. It abounds not only in lovely lakes of which the

Wular, the Dal, and

35

Manasbal are the most enchanting but also in beautiful springs like Kukarnag, Anantnag, Chashma Shahi etc. According to the current legend in Kashmir the

valley was once covered by waters of a mighty lake on which the Goddess "Parvati" sailed in a pleasure boat from Harmukh mountain in the north to the Konsarnag

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Lake in the south. In her honour the lake was known as "Satisar", a lake of the virtuous woman. The countryside was harassed by a demon known as 'Jaldeo',

a corruption of the name 'Jalodbhava'. It is said that Kashyapa Rishi, the grandson of Lord Brahma, came to the rescue of the lake but the demon continued

to elude for some time by hiding under the water. It is said that Lord Vishnu then intervened and struck the mountain at Baramullah with his trident, as

a result whereof the water of the lake rushed out but the demon again took refuge in the low ground where Srinagar is now situated, and baffled the pursuit

impelling Parvati to cast a mountain on him which destroyed the wicked Jaldeo. The said mountain is known as Hariparbat. Since then the Goddess has been

worshipped on its slopes.

Kashmir is joined with Gilgit, Ladakh, and Skardu by roads which are feats of engineering skill.

Before the construction of the Banihal Cart road, the route to Kashmir lay from Rawalpindi (now in Pakistan) to Kohala, a distance of 132 miles where it

joins the Jhelum valley road in the erstwhile dominion of the Maharaja.

From Uri a road crossing the Haji Pass (8,500 ft. goes to Poonch, which before the resumption of Jagirs by Maharaja Hari Singh was ruled by the Raja of

Poonch, the Chief Feudatory of the Maharaja. From Srinagar a road (243 miles in length) also goes to Leh following the course of Dras river which is rich

in exquisite scenery.

The city of Srinagar (which means the city of 'Sri' or Lakshmi, the Goddess of fortune) is the principal city in Kashmir Valley. It is the summer capital

of the Darbar. The valley is liable to earthquakes and floods. A graphic description of the parts of the state is given in the Imperial Gazetter of Indian.

Provincial series, published by the Superintendent of Government Printing Press, in Calcutta in 1909 which can be referred to with advantage.

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36

Some of the Earlier Rulers of Kashmir

As mentioned in Rajatrangini*, the earliest recorded Hindu ruler of Kashmir was King Gonanda. Therein a mention is also made of Asoka and his town, Srinagar,

with its ninety six lakh houses resplendent with wealth. Kalhana next mentions three kings, Hushika, Jushhka and Kanishka. During the rule of these Kings,

Buddhism held its sway in Kashmir. Of these three rulers it was Kanishka who held the third great council in Kashmir. It is said that the Buddhist creed

and the Brahamanical cult existed side by side. The Kashmiris were from the earliest period Saivas.

Another famous King Gopaditya did a lot to advance the interests of Brahmins.

Pravarasena II*, who reigned in the sixth century — lead many victorious campaigns. The famous Lalitadirya who believed in enforcement of strict discipline

ruled in the middle of the eighth century. As a victorious soldier he not only overcame the Kings of India but also invaded Central Asia. It was Lalitaditya

who built the beautiful temple of Martand. Sarkara Varman (883-902)—though a profligate was another great conquerer. He built the town of Pattan. Last

of the strong Hindu rulers (950-1003) was Queen Didda. Then followed the Lohara dynasty. During the reign of this dynasty Damaras plundered and pillaged

the valley. The last of this line was Sahadeva or Simhe Deva. During his reign (1128) Dulcha, a Tatar Chief, from Central Asia, invaded Kashmir and after

indulging in mass slaughter he burnt and destroyed a large part of Srinagar. He ultimately died in the snow bound passes while going back. When Dulcha

was plundering Srinagar Sahadeva retreated to Kishrwar leaving the kingdom to Ramachandra or Ram Chand, his Prime Minister and Commander-in-Chief to manage

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the affairs of the State. After Dalchu's exit Ram Chand assumed the title of King and exercised some semblance of authority in Kashmir. He defeated the

Gaddis from Kishtwar who had attacked Kashmir after the retreat of Dalchu. In this war he was assisted by Rinchin Shah, a fugitive prince from Tibet and

Shah Mir, a Muslim adventurer from Swat. In managing the affairs of the State he was also assisted by his daughter Kota.

37

She played a prominent role in alleviating the miseries of the people. In course of time Rinchin who had gained popularity among the Kashmiris, became ambitious

and was biding his time to overthrow Ram Chand. His attempt to overthrow Ram Chand by force failed but being crafty and realising that he would not be

able to win in open war against the former, he conspired with his Tibetian followers. They disguised themselves as peddlars and entered the personal quarters

of Ram Chand without giving any cause for suspicion and murdered him before his guards could come to his rescue. Rinchin at the same time attached the

fort of Ram Chand and overcame the resistance of few loyalists. Thus Rinchin became the King of Kashmir. Soon after ascending the throne he appointed Ram

Chand's son as his Minister. This step was taken by him to win over Kota's love. This method paid off and Kota married him. Both Rinchan and Kota Rani

conducted the affairs of the state wisely and justly. They brought order and discipline in the army and the administration. In this task they were served

by Shah Mir. At this time when the going looked smooth, Shahdeva's brother Udyandeva, who had also fled the country at the time of Dulchu's invasion, sought

the help of Gandhara and launched an attack on Rinchin's palace. In the fight Rinchin received a blow on his head but succeeded against the enemy. However,

he succumbed to the injury, and died in 1320. Rinchin was survived by his wife Kota and his son Haider. After his death hostile elements within the state

raised their head. Kota Rani realised that she would not be able to rule the country with the meagre resources at her disposal. In the meantime, Udyanadeva

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started advancing towards Kashmir with his forces. Kota Rani offered him the throne and her hand. Thus Udyanadeva became the king of Kashmir and Kota Rani

his queen. Kota Rani with her beauty and charm coupled with intelligence became the virtual ruler of Kashmir relegating Udyanadeva to the background.

At this time Kashmir was again threatened with an invasion by another adventurer, King Achala. Udyanadeva being timid like his brother Sahadeva again fled

from the State. Kota Rani, however, decided to stay on and fight the invader. She organised a strong resistance with the assistance

38

of Shah Mir. However, Kota Rani realised that it would not be possible to succeed in war against Achala. Feigning submission she invited Achala to occupy

the throne of Kashmir with the condition that his army should withdraw. Achala was taken in by the stratagem and sent back his troops. At the opportune

time Kota Rani attacked Achala and defeated him and had him beheaded. By this success Kota Rani became extremely popular with the people of Kashmir. Learning

of Kota's success Udyanadeva returned to the capital. Kota Rani notwithstanding the cowardly act of Udyanadeva received him with full respect.

With his death Shah Mir became extremely ambitious and thought of a plan to acquire the throne. Pretending to be very ill, he circulated disinformation

that his end was near. Kota Rani sent her able Prime Minister Bikhshana Bhatta to enquire about his health. This proved to be a very grave mistake which

cost her dearly. Shah Mir killed Bhatta by deceit. The death of Bhatta was a grievous blow which shook the very vitals of her Kingdom. After a short time

a rebellion broke out in the Kamaraj district. The Queen in order to personally supervise the operations left Srinagar. Soon thereafter Shah Mir with a

strong force captured the city and proclaimed himself as the King. Kota Rani in order to quell rebellion of Shah Mir and take back the city mustered a

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strong army and organised her forces. When the victory was in sight Shah Mir sought the help of Lutsa, who was his relative. The forces of Lutsa attacked

the contingent of Kota Rani from the rear and Shah Mir launched an offensive from the front. This led to the victory of Shah Mir. Kota Rani was virtually

left with the fort of Jayapura under her control. Realizing that she had no chance to acquire the throne, she committed suicide. Thus ended the rule of

the last Hindu Queen of Kashmir. On the death of Kota Rani, Shah Mirza declared himself as the King of Kashmir and established what was known as the Salatin-i-Kashmir

and took the name of Sharasuddin.

Sultan Sikander who invaded Kashmir in 1394 burnt and destroyed many sacred places including beautiful temples and forced Kashmir is to take to Islam. In

1402, Zain-ul-Abidin

39

ascended the throne. He was a wise and virtuous and tolerant to the Brahmins. He remitted the toll tax, repaired some of the Hindu temples, revived the

Hindu learning and encouraged Brahmins to learn Persian which was introduced as the official language. Towards the end of his reign Chakas, a mischievous

clan sprang into prominence. Zain-ul-Abidin drove them out but during the time of his weak successors they returned and seized the Government of Kashmir.

Though turbulent they were brave. A chak ruler, Yakub Khan offered a tough resistance to Akbar when he launched the first onslaught on Kashmir in 1582.

However, in 1586 latter he conquered Kashmir after some reverses. It was Akbar who built a strong fort on the slope of Hara Parbat. It was his wise and

able Minister Todarmal who prepared records of fiscal conditions of Kashmir valley. Jhangir who was greatly attached to Kashmir laid lovely gardens around

Dal Lake.

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Ali Murdan Khan the last of Mughal Governor, built a Sarai on the Pir Panjal route to Kashmir. On the death of Aurangzeb the Mughal rule collapsed and in

1752 the province of Kashmir became independent of Delhi. Then followed the cruel rule of Afghans. Governors from Kabul oppressed the Kashmiris. The worst

hit were the Brahamins of Jhelum valley. In their agony the people of Kashmir looked for life to the rising power of Sikhs who first met with reverses.

Afterwards in 1814 with the help of his general Diwan Chand Gulab Singh, Ranjit Singh succeeded in conquering Kashmir, Historical aspects linked with Gulab

Singh and what followed after him have been summarised while dealing with Jammu Region and need not be repeated. It is also a queer freak of destiny that

China, which was given solid and unstinted support by India for becoming a member of U.N.O. and in securing a seat on the Security Council, became an inveterate

enemy of India and launched an unprovoked assault on Indian territory in 1962 and forcibly annexed a large portion of the territory under the sovereignty

of India besides what she illegally acquired from another hostile neighbour, namely Pakistan which the latter had no right to handover to the former.

It is indeed very sad and unfortunate that the happy glorious valley which was once regarded as a peerless 'heaven

40

on earth' has been engulfed in bloody violence due to the insurgency and militancy and counter action of the armed forces since 1988 resulting in destruction

not only of huge precious national assets and resources but also loss of many valuable lives.

As wisely suggested by Dr. Karan Singh, a seasoned gentleman of great erudition and piety and supported by popular media, each of the five regions comprising

the State as it existed in 1947 should be made autonomous by establishment of an autonomous council with a responsible democratic executive council under

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the framework of the Indian Constitution as has recently been done in case of Ladakh region to avoid bitterness between the five regions, and domination

by any one of them over any other four region.

This humble work which inter alia contains important judgments of various High Courts as well as of the Supreme Court of India having a considerable bearing

on the salients provisions of the current constitution of Jammu&Kashmir including the Articles of Constitution of India which have been ruled applicable

to the State is being brought out in the earnest hope that it will be of use to the dispensers of justice, to those engaged in legal practice as well as

to those entrusted with the administration of the State in the discharge of their onerous duties, remove the mist that is clouding the understanding and

intellect of the deluded enemies of the State and the like minded persons living in and outside the sub-continent about the meaning, import and ambit of

the important provisions of the Constitution and the declarations of the British Government bearing upon the question of accession of the State to the

Union of India. The author will feel compensated if it serves the aforesaid purposes even to a minimal degree. In case any one finds it lacking in any

respect, the author would like to crave his indulgence to be gracious enough to overlook the shortcomings.

Historical aspects linked with Gulab Singh and what followed after him have been summarised while dealing with Jammu Region and need not be repeated. It

is a queer freak of destiny that China which was given solid and unstinted support by India for becoming a member of U.N.O. and in

41

securing a seat on the Security Council became an invertrate enemy of India and launched an unprovoked assault on Indian Territory in 1962 and forcibly

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annexed a large tract of the territory under the sovereignty of India besides what she illegally acquired from another hostile neighbour of ours, namely

Pakistan which the latter had no right whatsoever to handover to the former.

After the accession of the State to India a number of orders have been issued by the -President of India by virtue of the powers conferred on him by article

370 of the Constitution of India. This article is a very controversial one. There is a considerable section of the community both in and outside the state

who maintain that the said article which was, as amnifest from its language, meant to be only transitory is assuming a permanent character. It is also

urged by them that the said article needs to be obliterated as it has outlived its utility. They are also of the view that it encourages separatism and

is a stumbling block in the way of emotional integration of the people of the valley with India. That apart the author is personally of the view that the

disadvantages flowing from its application far outweigh the advantage flowing from its application. For instance, article 35-A which relates to preventive

detention has for a long time deprived the detenus of the benefits that have been enjoyed by the rest of the Nationals of the Country. According to its

pernicious content even if this article took away or abridged any of the fundamental rights of a detenu it could not have been held by any court to be

in valid. Nothing, in the opinion of the author, could be more obnoxious than this. Then again though all High Courts in India could issue writs of all

kind, it was the lone High Court of the State which except for enforcement of fundamental right could not issue any writ for enforcement of a legal right

for a number of years. It may also be printed out the initially this article was meant only for five years but unfortunately it was extended in 1959 for

10 years and then again it was extended for another period of 15 years in 1968. For fuller discussion it would be beneficial in this behalf to refer to

42

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a decision of the Supreme Court rendered in Sampath Parkash Vs. State of J&K (A.I.R.) (1961 S.C. 1519).

Recently the educated youth of the valley have been carrying on a campaign for removal of certain pieces of legislation applied to the state. They, however,

seem to overlook that way back the Sheikh appointed Devi Dass Committee to examine and report whether any legislation applied to J&K after 1950 was against

the interests of the state. The committee after closely examining all the said legislations found that they were not at all prejudicial to the interests

of the State. On the other hand, some of them like Industrial Law, Labour Laws were definitely of great benefit to the people of the State.

Recently, the people of the valley have been agitating for greater and fanciful autonomy unknown in International Law to a federal polity overlooking the

Indira-Sheikh Pact of 1975, principal features whereof have been reproduced elsewhere. Though the author is not fully qualified to offer any advice he

would like to suggest to the people of the valley not to press such like demands which would be deterimental to the homogeneous and cohesive character

of the State and rest content with the kind of autonomy, which is now being enjoyed by the people of Ladakh Region, with minor changes leading to amity,

peace and prosperity of the state. It would also be beneficial in order is to avoid bitterness that each of the five regions of the State are given the

same kind of autonomy so that none of the region feels that the other region is dominating it.

It is, however, to be noted that the autonomy package recently offered by the Prime Minister of India has had a mixed reception and has not been welcomed

by some noted political organisations in the Valley. It is, however, gratifying to learn from the newspaper reports that there is a distinct change in

the attitude of the people of the valley. Even the Hurriyat is reported to have conveyed to Dr. Farouk Abdula, President of the National Conference that

they support him for the kind of Autonomy which he was pressing for within the frame work of the Indian Constitution.

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43

It would also be of great advantage if concrete steps are taken to win the minds and hearts of the people of the valley and wean them from gun culture by

all means that may be possible without detriment to the interests of the Center or the State.

APPENDIX 3

Ladakhi Letter of Agreement, 1842

Translations of the original letters written in Tibetan

Shri Khalsaji Apsarani Shri Maharajah; Lhasa representative Kalon Surkhang; investigator Dapon Peshi, commander of forces; Balana, the representative of

Gulam Kahandin; and the interpreter Amir Shah, have written this letter after sitting together. We have agreed that we have no ill-feelings because of

the past war. The two kings will henceforth remain friends forever. The relationship between Maharajah Gulab Singh of Kashmir and the Lama Guru of Lhasa

(Dalai Lama) is now established. The Maharajah Sahib, with God (Kunchok) as his witness, promises to recognize ancient boundaries, which should be looked

after by each side without resorting to warfare. When the descendants of the early kings, who fled from Ladakh to Tibet, now return, they will be restored

to their former stations. The annual envoy from Ladakh to Lhasa will not be stopped by Shri Maharajah. Trade between Ladakh and Tibet will continue as

usual. Tibetan government traders coming into Ladakh will receive free transport and accommodations as before, and the Ladakhi envoy will, in turn, receive

the same facilities in Lhasa. The Ladakhis take an oath before God (Kunchok) that they will not intrigue or create new troubles in Tibetan territory. We

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have agreed, with God as witness, that Shri Maharajah Sahib and the Lama Guru of Lhasa (Dalai Lama) will live together as members of the same household.

We have written the above on the second of Assura, Sambhat 1899 (17 September 1842).

Sealed by the Wazir, Dewan,

Balana, and Amir Shah.

44

Tibetan Letter of Agreement, 1842

This agreement is made in the interests of the friendship between the Lhasa authorities and Shri Maharajah Sahib and Maharajah Gulab Singh. On the thirteenth

day of the eighth month of the Water-Tiger year (September 17, 1842), the Lhasa representative Kalon Surkang, investigator Dapon Peshi, Shri Raja Sahib

Dewan Hari Chand and Wazir Ratun Sahib, the representative of Shri Maharajah Sahib, sat to-gether amicably with Kunchok (God) as witness. This document

has been drawn up to ensure the lasting friendship of the Tibetans and the Ladakhis. We have agreed not to harm each other in any way, and to look after

the interests of our own territories. We agree to continue trading in tea and cloth on the same terms as in the past, and will not harm Ladakhi traders

coming into Tibet. If any of our subjects stray into your country, they should not be protected. We will forget past differences between the Lhasa authority

and Shri Maharajah. The agreement arrived at today will remain firmly established forever. Kunchok (God), Mount Kailash, Lake Manasarowar, and Khochag

Jowo have been called as witnesses to this treaty.

Sealed by Kalon Surkhang

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and Dapon Peshi

Notes. 1. Source: W.D. Shakabpa, Tibet: A Political History (New Haven, 1967), pp. 327-328.

APPENDIX 4

Agreement Between Tibet And Kashmir (1852)

Concluded between the two Garpons or provincial Governors appointed by the Dalai Lama and the representatives of the Maharaja of Kashmir

This is dated the third day of the month of the Water Bull Year (apparently 1852.)

45

The Ladakhis refusing to supply the Tibetan Government trader Ke-Sang Gyurme with the usual transport animals on account of the decreased tea trade, the

Nyer-pas of the Garpons were deputed to enquire about this matter and to investigate the boundary dispute between Ladak and Tibet. A meeting was accordingly

arranged between Ladak Thanadar Sahib Bastiram and Kalon Rinzin accompanied by his servant Yeshe Wangyal and an agreement was made as follows:

In future the Ladakhis will supply the Tibetan Government traders with the usual transport requirements without any demur. The joint Te-Jis ["Teji" is a

Tibetan title which the then Garpons might have held] will request their Government to appoint only intelligent and capable men to take the annual tribute

to Tibet. The Ladakhis shall provide the Tibetan Government traders with accommodation and servants as usual and render them any further assistance according

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to the old-established custom. The Garpons will issue orders to the effect that tea and woolen goods arriving at Nagari shall only be sent to Ladak and

not to any other place. The boundary between Ladak and Tibet will remain the same as before. No restriction shall be laid by the people of Rudok on the

export of salt and woolen goods and the import of barley flour and barley. Neither party shall contravene the existing rules and the rates of Customs duties

and market supplies shall be fixed by both parties concerned. The above rules shall apply also to the Rongpas [people inhabiting in the valley countries],

who export salt. The travellers from North and West who come through Wrong are given passports by the Thanadar. They are liable to Customs duties as prescribed

in their passports. Should any of them be unable to produce his passport, he shall be made to pay fifty times the amount ordinarily recoverable from him.

No case will be heard against such recoveries made by the Customs Officer. In deciding all important matters the ruler shall take into consideration the

manners and customs of both sides and observe the old-established rules regarding supply of transport, etc. There shall be no restriction in grazing animals

in the pasture reserved from the animals of the Government traders, but the people shall not be allowed

46

to abuse this privilege by bringing animals from outside to graze on it. Both parties shall adhere strictly to the agreement thus arrived at between Tibet

and Singpas (Kashmiris), and the two frontier officers shall act in perfect accord and co-operation.

Notes. 1. Source: The Indian Society of International Law, The Sino-lndian Boundary (New Delhi, 1962), pp. 4-5. Reprinted by permission. This Treaty was

signed and sealed by Thanedar Bisram and Kalon Rigzin of Ladakh, and two stewards of the Tibetan governor at Gartok; witnessed by Yeshe Wangyal.

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47

Treaty of Lahore

Dated 9th March, 1846

The British Government having demanded from the Lahore state an indemnification for the expenses of the war in addition to the cession of territory described

in A 3, payment of 11/2 crores of rupees; and the Lahore Government being unable to pay the whole of this sum at this time or to give security satisfactory

to the British Government for its eventual payment, the Maharaja cedes to the Honourable Company in perpetual sovereignty as equivalent for 1 crore of

rupees, all his forts, territories, rights and interests in the hill territories which are situated between the river Beas and Indus including the provinces

of Kashmir and Hazara.

1In Consideration of the services rendered by Raja Gulab Singh of Jammu to the Lahore State towards procuring the restoration of relations of amity between

the Lahore and British Governments the Maharaja hereby agrees to recognise the independent sovereignty of Raja Gulab Singh in such territories and districts

in the hills as may be made over to said Raja Gulab Singh by separate agreement between himself and the British Government with dependence is thereof which

may have been in the Raja's possession since the time of Raja Kharak Singh and the British Government in consideration of good conduct of Raja Gulab Singh,

also agrees to recognise his independence in such territories and to admit him to the privilege of a separate treaty with the British Government.

This separate treaty was signed at Amritsar on 16th March, 18462. What was given to Raja Gulab Singh was apart

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1 Another version of the preaty as given in Bamzai's history of Jammu&Kashmir at page 601.

2 What was ceded to the British was after a hard and strenuous campaign.

48

of the territories ceded to the British by the Lahore state. Although according to the treaty of Lahore dated 9th March, 1846. Gulab Singh became the ruler

of Kashmir, it was nominally only, as he did not get actual possession of his new province without difficulty. His forces sent under the Command of Wazir

Lakhpat were opposed by Sikh troops of the Governor Sheikh Imam-ud-Din.

A battle was fought at the foot of Shankaracharya hill in which the Wazir was killed and his followers forced to take shelter behind the rampart of Hari

Parbat fort, on learning of this Gulab Singh appealed to the British for help whereupon a force was sent immediately to help him to establish his rule.

On learning of British help to Gulab Singh Imam-ud-Din left the valley along with his troops. It was Lal Singh, Chief Minister, who had sent written instructions

to Imam-ud-Din to oppose Gulab Singh's forces in Kashmir.

49

Treaty of Amritsar

Dated 16th March, 1846

No. 1.

TREATY between the BRITISH GOVERNMENT on the one part and MAHARAJA GULAB SINGH of JAMMU on the other, concluded on the part of the BRITISH GOVERNMENT by

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FREDERICK CURRIE, ESQUIRE, and BREVET-MAJOR HENRY MONT GOMERY LAWRENCE. G.C.B., one of HER BRITANNIC MAJESTY'S MOST HONOURABLE PRIVY COUNCIL, GOVERNOR-GENERAL,

appointed by the HONOURABLE COMPANY to direct and control all their affairs in the EAST INDIES, and by MAHARAJAH GULAB SINGH in person in 1846.

Article 1

The British Government transfers and makes over for ever, in independent possession, to Maharajah Gulab Singh and the heirs male of his body, all the hilly

mountainous country, with its dependencies, situated to the eastward of the river Indus and westward of the river Ravee, including Chamba, and excluding

Lahul, being part of the territories ceded to the British Government by the Lahore State, according to the provisions of Article IV of the Treaty of Lahore,

dated 9th March, 1846.

Article 2

The eastern boundary of the tract transferred by the foregoing Article to Maharajah Gulab Singh will be laid down by commissioners appointed by the British

Government and

50

Maharajah Gulab Singh respectively for that purpose, and shall be defined in Separate Engagement after survey.

Article 3

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In consideration of the transfer made to him and his heirs by the provisions of the foregoing articles, Maharajah Gulab Singh will pay to the British Government

the sum of seventy-five lakhs of Rupees (Nanukshahee), fifty lakhs to be paid on ratification of this Treaty, and twenty-five lakhs on or before the first

October of the current year, A. D. 1846.

Article 4

The limits of the territories of Maharajah Gulab Singh shall not be at any time changed without the concurrence of the British Government.

Article 5

Maharajah Gulab Singh will refer to the arbitration of the British Government any disputes or questions that may arise between himself and the Government

of Lahore or any other neighbouring State, and will abide by the decision of the British Government.

Article 6

Maharajah Gulab Singh engages for himself and his heirs to join, with the whole of his Military Force, the British troops, when employed within the hills,

or in the territories adjoining his possessions.

Article 7

Maharajah Gulab Singh engages never to take or retain in his service, any British subject, nor the subject of any European or American State, without the

consent of the British Government.

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Article 8

Maharajah Gulab Singh engages to respect, in regard to the territory transferred to him, the provisions of Articles

51

V, VI, and VII of the Separate Engagement between the British Government and the Lahore Durbar, dated 11th March, 1846.

Article 9

The British Government will give its aid to Maharajah Gulab Singh in protecting his territories from external enemies.

Article 10

Maharajah Gulab Singh acknowledge the Supremacy of the British Government, and will in token of such Supremacy present annually to the British Government

one horse, twelve perfect shawl goats* of approved breed (six male and six female), and three pairs of Cashmere shawls.

This Treaty, consisting of ten articles, has been this day settled by Frederick Currrie, Esquire, and Brevet-Major Henry Montgomery Lawrence, acting under

the directions of the Right Honourable Sir Henry Harding, G.C.B., Governor-General, on the part of the British Government, and by Maharajah Gulab Singh

in person, and the said Treaty has been this day ratified by the seal of the Right Honourable Sir Henry Hardinge, G.C.B., Governor-General.

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Done at Amritsar, the sixteenth day of March, in the year of our Lord one thousand eight hundred and forty-six, (1846) corresponding with the seventeenth

day of Rubbee-ool-awul 1262 Hijree.

F. Currie. H. Hardinge.

HH. M. Lawrence.

By order of the Right Honourable the Governor-General of India.

F. CURRIE.

Secretary to the Government of India, with the Governor-General.

52

Agreement between the Lahore and Kashmir Darbars, 1847

NO. II.

Agreement concluded between the Governments of Lahore and Jammu by Dewan Dina Nath and Rai Kishen Chand on the part of Maharaja Duleep Singh, and Dewan

Jowala Sahai and Kazi Mohkum-ud-din on that of Maharaja Gulab Singh, in the presence of Ideutenant-Colonel Lawrence. Agent, Governor-General, North-Western

Frontier, and Resident at Lahore, and subject to the approval of the Governor-General of India, regarding the exchange of the districts of Hazara, Pukli,

Kahuta, etc., west of the river Jhelum for lands east of that river in the direction of Jammu.

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We, the undersigned, consent and agree that Captain J. Abbott, the Boundary Commissioner, having examined the revenue records of the country west of the

Jhelum, shall, after deducting jagirs and rent-free lands, fix the yearly rent, after which lands producing half that rent shall be made over to Jammu

from the Lahore territory. Captain Abbott shall then lay down a well-defined boundary so as to prevent all future disputes, viz., on the west of the Jhelum

river to the border of Muzufferabad.

Whence it is to follow the Kurnaha river until such place as Captain Abbott can determine, a distinct and well-marked line across to the river Indus. This

done, the mutual exchange of territory shall be effected, after which it will behave both parties to adhere forever to the terms now settled, but should

differences arise, they are to be referred to the Agent, Governor-General, North-Western Frontier.

This agreement is signed in the presence of Leutenant-Colonel Lawrence, Agent, Governor-General, and is subject

53

to the confirmation of the Governor-General of India. A copy of this agreement to be made over to each Darbar, and one to be lodged in the Agency Office.

DEWAN JOWALA SAHAI.

DEWAN DINA NATH.

KAZIMOEKUM-UD-DBM.

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RAJ KISHEN CHAND.

H.M. LAWRENCE.

Agent, Governor-General, and

Resident at Lahore.

54

State Subject Definition

Notification dated the 20th April, 1927

*No. I-L'84. — The following definition of term "State Subject" has been sanctioned by His Highness the Maharaja Bahadur (vide Private Secretary's letter

No. 2354, dated the 31st January, 1927 to the Revenue Member of Council) and is hereby promulgated for general information.

The term State Subject means and includes-

Class I. All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Ghulab Singh, Sahib Bahadur,

and also persons who settled therein before the commencement of Samvat year 1942, and have since been permanently residing therein.

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Class II. All persons, other than those belonging to Class I who settled within the State before the close of Samvat year 1968, and have since permanently

resident and acquired immovable property therein.

Class III. All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a rayatnama any immovable

property therein or who may hereafter acquire such property under an ijazatnama and may execute a rayatnama after ten years continuous residence therein.

* This Notification is to be read subject to the provisions of section 6 of the Constitution of Jammu and Kashmir.

Class IV and Note IV added vide order No. 98-H/39, published in Government Gazette dated 27th Poh, 1996. By the same order His Highness is further pleased

to direct that, notwithstanding any law, rule or other order to the contrary, no disability as regards acquisition of any interest in land or other immovable

property in the State shall attach to a company which is a State Subject within the meaning of Notification No. I-L/84 dated 20th April, 1927, as amended.

55

[Class IV. Companies which have been registered as such within the State and which, being companies in which the Government are financially interested or

as to the economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been

declared to be State Subject].

Note I. In matters of grants of the State scholarships, State lands for agricultural and house building purposes and recruitment to State Service, State

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Subjects of Class I should receive preference over other classes and those of Class II, over Class III, Subject, however, to the Order dated 31st January,

1927 of His Highness the Maharaja Bahadur regarding employment of hereditary State Subjects in Government service.

Note II. The descendants of the persons who have secured the status of any class of the State Subject will be entitled to become the State Subject of the

same class. For example, if A is declared a State Subject of Class II his sons and grandsons will ipso facto acquire the status of the same Class (II)

and not of Class I.

*[Note III The wife or widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same Class as her husband,

so long as she resides in the State and does not leave the State for permanent residence outside the State.]

**[Note IV. For the purposes of the interpretation of the term "State Subject" either with reference to any law for the time being in force or otherwise,

the definition given in this Notification as amended up to date shall be read as if such amended definition existed in this Notification as originally

issued.]

* Note III added vide notification No. 51-I-/1989 as amended by Notification No. 6-I./1990 published in Government Gazette dated 8th Baisakh, 1990 and Government

Gazette dated the 23rd Bhadon, 1990 respectively.

** See footnote under Class IV, P. 73.

56

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ORDER NO. 1 OF 1928

Whereas it is expedient to establish a High Court of Judicature for the Jammu and Kashmir State, His Highness the Maharaja Bahadur is pleased to command

as follows :

Establishment of the High Court of Judicature, Jammu and Kashmir State and the Constitution thereof

That with effect from the fifteenth day of Baiskah Samvat one thousand nine hundred and eighty five, the High Court of Judicature Jammu and Kashmir State

shall be constituted and shall consist of a Chief Justice and one or more Judges, as His Highness the Maharaja Bahadur may, from time to time, think fit

to appoint. One of the Judges shall have revenue experience and shall be styled Judge of High Court and Revenue Commissioner.

The Chief Justice and every Judge of the High Court of Judicature shall hold office during His Highness the Maharaja Bahadur's pleasure.

Title

2 The said court shall henceforth be styled "the High Court of Judicature of Jammu and Kashmir State."

Oath of Office

The Chief Justice and every Judge of the High Court of Judicature previously to entering upon the execution of the duties of their respective office shall

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make and subscribe the following declaration before His Highness the Maharaja Bahadur or such officer as may be appointed in this behalf.

57

"I.....................appointed as Chief Justice (or a Judge)

of the High Court of Judicature Jammu and Kashmir state, do solemnly declare that I will administer Justice according to the law and usage of the Realm,

without fear or favour, affection or illwill."

Seal

3. The High Court of Judicature shall have and use, as occasion may require, a seal bearing a device and impression of the Jammu and Kashmir /Coat of Arms

with an exergue or lable surrounding the same, with this inscription. "The seal of the High Court of Judicature, Jammu and Kashmir."

The said seal shall be delivered to and kept in the custody of the chief Justice or of an officer of the court from time to time nominated by the Chief

Justice.

Writs etc.

5. All writs, summons, precepts, rules, orders and other mandatory processes to be used, or issued or awarded by the High Court of Judicature shall run

and be in the name and style of His Highness the Maharaja Bahadur and shall be sealed with the seal of the Court.

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Original Jurisdiction.

6. (a) The High Court of Judicature shall have jurisdiction to hear and determine any original proceeding or any suit of which the value is not less than

Rs. 10,000/- and notwithstanding anything contained in Section 15 of the Code of Civil Procedure of Samvat year 1977, every such suit or proceeding shall

be instituted in the High Court of Judicature.

Provided that nothing in this clause shall affect the provisions of Section 21 of the Code of Civil Procedure of Samvat year 1977, in respect of suit, appeal,

or other proceeding pending before a court subordinate to it to try or dispose of the same.

(b) The High Court of Judicature shall be deemed for the purpose of all enactments for the time being in force, to be the highest civil court of appeal

and revision.

58

(c) The High Court of Judicature shall be the highest court of Criminal appeal.

(d) The High Court of Judicature shall be empowered to hear and decide such revenue appeals as may be specified by general or special orders of His Highness

in this behalf and shall be deemed to be the highest court of Revenue appeal.

Jurisdiction of the Judges

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7. (a) Except as otherwise provided by any enactment for the time being in force and subject to any rules made under this order, with the sanction of His

Highness the Maharaja Bahadur, the jurisdiction of the High Court of Judicature may be exercised by a Single Judge of the court or by a bench of two or

more Judges of the court.

(b) Revenue appeals and revisions shall first be heard by the Revenue Commissioner sitting alone and appeals or revisions against his decisions shall lie

to a bench consisting of two other Judges of the court.

(c) Subject to the provisions of clause (b) above, the Chief Justice shall determine which Judge in each case shall sit alone, and which Judges of the court

shall constitute a bench.

Appeals from Civil Jurisdiction

8. (a) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree, or from any order against which an

appeal is permitted by any law or for the»time being in force, made by a Single Judge of the High Court of Judicature shall lie to a bench consisting of

two other Judges of the court.

Rule of Decision in Civil Cases when Judges Differ

9. (a) When there is a difference of opinion among the Judges composing any bench of the High Court of Judicature, the decision shall be in accordance with

the opinion of the majority of the Judges.

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59

(b) If there is no such majority then—

i) If the bench is a full bench, the decision shall be in accordance with the decision of the Senior Judge, and

ii) In other cases the bench before which the difference has arisen shall either refer the question to a full bench or refer the whole case for decision

to the full bench.

Power to Refer Question to a Full Bench or a Bench

10. (a) Any single Judge and any bench of two Judges of the High Court of judicature not being a full bench, may, in any case, refer for the decision of

a full bench any question of law, or custom having the force of law, or of the construction of any document, or of the admissibility of any evidence arising

before the Judge or the bench and shall dispose of the case in accordance with the decision of the full bench.

(b) Any judge of the High Court of Judicature may if he thinks fit, refer any appeal or application coming before him for hearing as single judge to a bench

of two judges for decision.

Superintendence and Control of Subordinate Courts.

11. (a) Subject to such rules and regulations as His Highness the Maharaja Bahadur may be pleased to frame in this behalf, the general superintendence and

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control over all courts shall be vested in they shall be subordinate to the High Court of judicature.

(b) The Chief Justice or a Judge of the High Court of Judicature appointed by him, shall from time to time visit and inspect the proceedings of the courts

subordinate to the High Court of Judicature and shall give such directions in matters not provided for by law as may be necessary to secure the due administration

of justice.

12. (a) The High Court of Judicature may, subject to the sanction of His Highness the Maharaja Bahadur, and on

60

such terms as to salary, allowance, promotion, leave, suspension, and dismissal, as may be sanctioned by His Highness the Maharaja Bahadur, appoint a Registrar,

a Deputy Registrar, and such other ministerial officers as may be necessary for the administration of justice by the court, and for the exercise and performance

of the powers conferred, and duties imposed on it by this order, or by any other enactment for the time being in force.

(b) The officers so appointed shall exercise such powers and discharge such duties as the High Court of Judicature may direct.

(c) The High Court of Judicature may delegate to the Registrar, the Deputy Registrar, or both, such judicial, quasi-judicial, or administrative powers as

it may deem fit.

Appointments and Powers of Subordinate Judicial Officers

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13. (a) The appointments of the District and Sessions Judges, Subordinate Judges, and Munsiffs shall be made by His Highness the Maharaja Bahadur on the

recommendation of the High Court of Judicature.

(b) The High Court of Judicature shall have power to transfer and grant leave to subordinate Judges and Munsiffs.

(c) The High Court of Judicature may subject to the sanction of His Highness the Maharaja Bahadur, grant leave to and transfer District and Session fudges

and may confer Civil and Criminal powers according to law on District and Sessions Judges, Subordinate Judges, Munsiffs, District Magistrates, Sub-Divisional

Magistrates and other exercising judicial functions.

(d) The High Court of Judicature shall have no independent powers of punishment, such as reduction, suspension and dismissal of judicial officers, but it

have the power to enquire into cases of misconduct and submit its recommendation for the orders of His Highness the Maharaja Bahadur.

Place of sitting

14. The usual places of sittings of the High Court Judicature shall be Jammu and Srinagar.

61

Special Commissions and circuit

15. Whenever it appears to the Chief Justice convenient that the jurisdiction and power vested in, the High Court of Judicature by this order or by any

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other law for the time being in force, should be exercised in any place within the jurisdiction of any Court subject to the superintendence of the High

Court of Judicature other than the usual place of sitting of the High Court of Judicature or at several such places by way of circuit, one or more judges

of the High Court of Judicature shall hold court at such place or places.

Requisition by His Highness the Maharaja Bahadur

16. The High Court of Judicature shall comply with such requestions as may, from time to time, he made under the commands of His Highness the Maharaja Bahadur

for records, returns and statements.

Confirmation of sentences

17. Cases requiring confirmation of sentences of death or of imprisonment for life shall be submitted to His Highness the Maharaja Bahadur for confirmation

in accordance with the provisions of the Code of Criminal Procedure.

Power to Make Rules

18. (a) The High Court of Judicature may with the sanction of His Highness the Maharaja Bahadur and after previous publication and consistently with the

provisions of the Code of Civil and Criminal Procedure and of any other law in force for the time being make rules-

(i) to regulate the practice of the Court.

(ii) to regulate the practice of the Courts subordinate there to.

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(iii) to provide for the forms to be used in the High Court of Judicature and the courts subordinate thereto for such proceedings, books, entries, statistics,

and accounts as it think fit.

(iv) to provide for the inspection of courts subordinate thereto and the supervision of the work thereof.

62

(v) to regulate all matters as it may think fit with a view to promote the efficiency of the judicial and ministerial officers of the High Court of Judicature

and of the courts subordinate thereto, and the maintenance of proper discipline among those officers.

(b) Such rules shall be made with the approval of a majority of the Judges of the court.

Admission of Advocates

19. (a) The High Court of Judicature shall have the power to approve admit and enrol Advocates, Vakils and attor-neys-at-law subject to a limit fixed by

His Highness the Maharaja Bahadur.

(b) The High Court of Judicature shall have power to make rules from time to time with the sanction of His Highness the Maharaja Bahadur for the qualification

and admission of proper persons to be Advocates, Vakils and attorneys-at-law of the High Court of Judicature and it shall also have the power to remove

or suspend from practice on reasonable cause, the said Advocates, Vakils and attorneys-at-law.

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Contempt

20. The High Court of judicature shall have the power to punish any person who is guilty of contempt in relation to itself or to any court subordinate to

it.

Pending Cases

21. (a) All appeals revisions and other judicial proceeding pending on the civil or criminal side of the High Court on the date on which this order comes

into force, shall be continued, heard and determined in the High Court of Judicature for the Jammu and Kashmir State according to law.

63

(b) All appeals and revisions against the decrees and orders of the High Court of which any competent authority may be seized on the date on which this

order comes into force shall be transferred to the High Court of Judicature constituted by this order for final disposal.

(c) All appeals, revisions and reviews against the judgments and orders of the High Court which can and may be duly filed on and after the date on which

this order comes into force shall be entertained and finally disposed of by the High Court of Judicature.

(d) Revenue appeals and revisions pending before His Highness or, in the Court of the Revenue Minister may by His Highness general or special order be transferred

for decision to the High Court of Judicature.

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(e) All pending applications for the review of the orders of His Highness the Maharaja Bahadur in appeal or revision against the order of the High Court

or of the Revenue Minister or such applications as may be presented hereafter till this order comes into force, will be dealt with and disposed of as here

to before.

(f) No Judge of the High Court of Judicature sitting in full bench thereof, notwithstanding anything to the contrary provided anywhere shall by reason of

his having decided or otherwise dealt with any case referred to in clauses (a), (b), (c), (d), and (e) above, be barred from hearing and deciding the same.

Consequential Changes

22. Consequent on the promulgation of this order all the changes required to bring the existing laws, regulations or enactments into conformity with the

provisions of this order shall be made on as early a date as possible with the sanction of His Highness the Maharaja Bahadur.

Royal Prerogative

23. (a) Nothing herein contained and nothing contained in any other law for the time being in force, shall be deemed

64

to affect in any way or derogate from the inherent power and prerogative of His Highness the Maharaja Bahadur or to affect in any way his prerogative of

mercy and pardon or his power of remitting commuting or reducing sentences conditionally or otherwise or to bar the full and unqualified exercise of proceeding

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whether before or decided by the High Court of Judicature any court subordinate thereto or to pass such orders thereon as may be in accordance with the

law and usage of the Realm and consonant with the dictate of justice, equity and good conscience.

(b) Except as provided by this order there shall be no appeal or revision against the decree and orders of the High Court of Judicature for Jammu and Kashmir

State.

By Command of His Highness the Maharaja Bahadur.

Sd P.K. Wattal

Minister-in-Waiting.

Jammu

26th March, 1928

65

The Jammu&Kashmir Government Gazette

VOL 46 Jammu, Thursday, The 7th Baisakh 1991-19th April, 1934. No. 27

PART III

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Laws and Regulations and Rules passed there under

OFFICE OF THE PRIME MINISTER

(Political Branch)

(Ist Publication)

ACT I OF 1991

Whereas it is my declared intention to provide for the association of my subjects in the matter of legislation and administration of the State. I hereby

promulgate the following Act:

1. This Act may be styled as the Jammu and Kashmir Act No. 1 of 1991 and it shall come into force on 7th Baisakh 1991-19th April 1934.

2. In this Act unless there is something repugnant in the subject or context :

"His Highness" means His Highness the Maharaja Bahadur of Jammu and Kashmir.

"State" means the State of Jammu and Kashmir.

"Council" means the Council of Ministers of Jammu and Kashmir hereinafter referred to.

"Assembly" means the Legislative Assembly of the State constituted under this Regulation.

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"Official" and "Non-Official" means respectively a person who is or who is not in the Civil or Military Service

66

of the State provided that rules under this Act may provide for the holders of such offices or any of them as may be specified in the rules not being treated

for purposes of this Regulation as officials.

3. All powers legislative, executive and judicial in relation to the State and its Government are hereby declared to be and to have been always inherent

in and possessed and retained by His Highness the Maharaja of Jammu and Kashmir and nothing contained in this Act shall affect or be deemed to have affected

the right and prerogative of His Highness to make and pass Regulations. Proclamations and Ordinances by virtue of his inherent authority.

4. The Government of the State shall be conducted in the name of His Highness and all powers and authority under this Act shall be exercised by and in the

name of His Highness.

5. The Council of Ministers of the State shall comprise the Prime Minister for the time being and such other Ministers of the State as His Highness may

appoint. The Prime Minister who shall be the President of the Council, and the other Ministers shall hold office during His Highness pleasure.

6. Subject always to the provisions of Section 3 and the exercise in his discretion of the powers and authority inherent as aforesaid in His Highness and

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subject also to such rules of business and allocation of portfolios and such other directions as to consultations with or reports to and confirmation by

His Highness on specified matters as His Highness may give from time to time by general or special orders in that behalf, the superintendence, direction

and control of the Civil Administration and Government of the State shall be vested in the Council.

7. The following subjects shall be deemed by this Act and it shall not be lawful for the Assembly to consider, deal with or relating to or affecting :

(a) His Highness or any Member of the Royal Family or the management of their Household,

(b) Relations, Treaties, Conventions or Agreements between the State and His Majesty the King Emperor of India

67

or the Government of India or with foreign powers or the Government of any State in India now subsisting or in force of hereafter to be established or made,

(c) Matters concerning the Gilgit and Ladakh Frontiers,

(d) Rights specifically granted to Ilaqudars or Jagirdars by their Sanads,

(e) The organization, discipline and control of the State Army,

(f) The State Departments now under the charge of the Minister-in-Waiting of His Highness and specified in the Schedule hereto (Schedule I).

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(g) The Dharmarth Department.

(h) The provisions of this Act and the Rule there under and their repeal or modification.

8. The Council, with the previous consent of His Highness and subject to the provisions of Section 6, may make rules for the conduct of executive business

and may, in default of any directions given by His Highness, provide that the authority of the Council may be delegated to a Minister in respect of any

subject or class of subjects.

9. All rules and orders issued prior to the enactment of this Act shall remain in force excepting in so far as they are amended or repealed by this Act.

10. The Legislature of the State shall consist of :

a) The Council; and

b) The Assembly;

and subject to the provisions of Section 7, no legislative measure shall be deemed to have been passed unless it has been passed by the Council or the Assembly

under the provisions hereinafter set out and has received the assent of His Highness.

11. The Council may provide by Regulation for any matter concerning the Public Debt or the Public Revenue of the state including the imposition of any charge

thereon or the maintenance alteration or imposition of any tax or duty.

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12. Notwithstanding anything contained in this Regulations the Council may, in cases of emergency or where immediate legislation is required in any matter

affecting the good Government of the State, submit to His Highness an

68

Ordinance and such ordinance on being assented to by Highness shall have the force of law for a period exceeding six months from the date of promulgation.

13. Subject to the provisions herein contained the Assembly shall have power to make Regulations for all persons, for Courts and for all places and things

within the State.

14. The Assembly shall consist of Members nominated or under the provisions of this Regulations and of the Jammu Kashmir Assembly Electoral Regulations,

issued under His Highness command by endorsement No. P.B. 157 of 5th March. The total number of non-elected Members shall and include the Ministers for

the time being and by virtue of their office and 16 State Council by name by His Highness for a period of 41/2 year. Members nominated by His Highness

for the communities specified in the attached Schedule. The number of officials nominated by virtue of shall not exceed 12 including the Ministers. The

elected Members shall be 33 and they shall be elected from the constituencies and from the communities specified in the Jammu and Kashmir Assembly electoral

Regulation.

15. The Council may make rules for the following purposes :

(a) as to the term of office of nominated Members of the Assembly and the manner of filling casual vacancies amongst them;

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(b) as to the conditions under which and the manner in which persons may be nominated as Members of the Assembly;

(c) as to the qualifications of electors, the constitution of constituencies and the method of election for the Assembly and any matter incidental or ancillary

thereto;

(d) as to the qualification for being elected or being nominated as Members of the Assembly;

(e) as to the final decision of doubts or disputes as to the validity of an election; and,

(f) as to the manner in which such rules should be carried into effect.

16. The Council shall provide by rules under this Act for regulating the course of business and the preservation

69

of order in the Assembly; for the number of Members required to constitute a quorum and for prohibiting or regulating the asking of questions on and the

discussion of any subjects specified in the rules.

17. The President of the Assembly shall by appointed by His Highness for such term and on such salary as he may fix and he may remove the President from

office and fill casual vacancies in that office from time to time. The President's place during his temporary absences shall be taken by such person as

His Highness may direct by general or special order in that behalf.

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18. Every Assembly shall continue for three years from its first meeting provided that :

(a) the Assembly may sooner be dissolved by His Highness

(b) such period may be extended by His Highness if in special circumstances he so seems fit.

(c) after the dissolution of the Assembly His Highness shall appoint a date not more than six months after the date of the dissolution for the next Session

of the Assembly.

19. There shall be two Sessions of the Assembly in the year as far as possible in the months of October at Srinagar and in March at Jammu and His Highness

may also appoint such other times and places for holding an ordinary or special Session as He thinks fit.

20. His Highness may from time to time prorogue the Sessions of the Assembly.

21. Any Session of the Assembly may be adjourned by the person presiding.

22. All questions in the Assembly shall be determined by a majority of votes of the Members present other than the presiding Member who shall have and exercise

a casting vote in case of an equality of votes.

23. The powers of the Council or of the Assembly may be exercised notwithstanding any vacancy among the Ministers or the Assembly.

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24. An official shall not be qualified to be elected as a Member of the Assembly or to be nominated for any of the seats specified in Schedule II and if

an elected Member

70

or a Member nominated for one of such seats accepts office, his seat shall become vacant.

25. The seat of any Member of the Assembly shall become vacant on his being sentenced for an offence punishable with imprisonment for a term of six months

or more or on his being interned or externed under the orders of a Magistrate or the Council or His Highness.

26. It shall not be lawful for the Assembly to make, repeal or alter any Regulation referred to in Section 11, or to repeal or alter an Ordinance passed

under Section 12.

27. It shall not be lawful at any meeting of the Assembly to consider or enact any measure imposing any disability on any community as such.

28. It shall not be lawful without the previous sanction of His Highness and without the consent in writing of not less than two-thirds of the Members of

the Assembly from the community affected, to introduce, consider or enact any measure affecting the religious rights, usages, endowments or personal law

of any community.

29. When any bill has been introduced or is proposed to be introduced or any amendment to a bill is moved or proposed to be moved or any resolution is moved

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or proposed to be moved or any question is proposed to be asked His Highness may declare that the bill or any clause of it or amendment or the resolution

or question affects the safety or tranquility of the State or any part thereof and may direct that no proceeding shall be taken by the Assembly in relation

to the bill or any clause of it or amendment or resolution or question and effect shall be given to such direction.

30. No measure shall be deemed to have been passed by the Assembly until and unless His Highness has signified his assent thereto.

31. Where the Assembly refuses leave to introduce or fails to passing a form recommended by the Council any Regulation, His Highness may declare that Regulation

is essential for the good Government, safety or tranquility of the State and such measure shall, on the signification of His Highness assent become a Regulation

as if it has been passed by the Assembly.

71

32. Subject and without prejudice to the provisions herein contained, His Highness may, where a measure has been passed by the Assembly, return the same

for reconsideration by the Assembly.

33. The president shall refuse leave to move a resolution or to ask a question which, in his opinion, affects any matter reserved under the provisions of

this Act, or which affects the religious rights, usages, endowments or personal law of any community and is not moved or asked by a Member of that community.

34. Standing orders may be made and altered by the Assembly providing for the conduct of business and the procedure to be followed in the Assembly. Any

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Standing Order which is repugnant to the provisions of this Act or to any rules made there under shall, to the extent of that repugnancy but not otherwise,

be void.

35. Subject to the rules and Standing Orders of the Assembly, there shall be freedom of speech in the Assembly and no person shall be liable to any proceedings

is any Court of Law by reason of his speech or vote in the Assembly or by reason of anything contained in any official report of the Assembly.

36. The Council shall cause a copy of the detailed statement of the estimated annual Revenue and Expenditure of the State and exercising Criminal and Civil

Jurisdiction to be law on the table of the Assembly on the first day of the Session to be held in each year in the month of October or any of the subsequent

months if a meeting be not held in October. The President shall provide for the meeting of the Assembly not fewer than seven days for the consideration

of the statement after a week from the commencement of the said session of the Assembly. During the time so provided and subject to the provisions hereinafter

contained and to any rules or Standing Orders, any Member of the Assembly may ask a question or move a resolution regarding any appropriation of revenue

or moneys proposed in the statement or regarding the form in which the statement is laid on the table.

37. If such a resolution is supported by a majority of votes, the President shall, before the Budget is passed, declare

72

what action, if any, the Council will take on the resolution.

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38. Before any new tax or duty is imposed or the rate of any existing tax or duty is altered by any ordinance, Regulation or rule under this Regulation,

the Council shall cause a copy of such Regulation, Ordinance or rule to be supplied to each Member of the Assembly and the President shall allot a day

and days in the consideration of such Proposals in the Assembly and any Member may then move any resolution on the proposals or ask any question regarding

them and such tax or duty shall not be imposed or altered until the Council has taken into consideration any resolution regarding it which may have been

passed by a majority of votes in the Assembly.

39. The following matters shall not be open for discussion and no resolution may be moved or question asked in respect of these at the time when the said

statement is under consideration :

(a) expenditure on matters reserved from the cognizance of the Assembly under Section 7.

(b) expenditure which is obligatory under any law.

(c) Pensions and gratuities granted by His Highness or with his sanction or under the rules sanctioned by His Highness.

(d) interest on loans and sinking fund charges; and,

(e) expenditure which may be classified by His Highness or the Council as political.

40. If any question arises whether any proposed appropriator of revenue or money does or does not relate to any matter not liable to be voted upon by the

Assembly the decision of the President shall be final.

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41. No proposal shall be made or resolution moved for the appropriation of any revenue or moneys for any purpose excepting by and on the recommendation

of the Council.

42. It shall not be lawful for any Member to introduce in the Assembly, without the previous sanction of the Council, any measure affecting the public revenue

of the State or imposing any charge on such revenues.

73

43. Where any Ordinance has been passed under sanction 12 of this Act, the Council shall cause a copy of it to be delivered to each Member of the Assembly.

44. If any dispute arises as to the interpretation or the carrying out of any of the provisions of this Act or the rules made there under, the decision

of the Council, subject to the provisions of Section 3, shall be final.

45. Communication by His Highness to the Assembly may be made (a) in person, (b) by message sent through the Prime Minister or other Minister, or (c) by

the President or other person presiding under the provisions of Section 17.

46. Every person who is elected or nominated to be a Member of the Assembly shall before taking his seat make, at a meeting of the Assembly, an oath of

his allegiance to His Highness in the following form, namely :

I have been elected a Member of this Assembly do solemnly swear that I will be faithfully and bear true allegiance to His Highness Raj Rajeshwar Maharajadhiraj

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Shri Maharaja Harisingh Ji Bahadur, Indar Mahindar Sipar-i-Saltanat-i-Inglishia, G.C.S.I., G.C.I.E., K.C.V.O., of Jammu and Kashmir, his heirs and successors

and that I will faithfully discharge the duty upon which I am about to enter.

Every person who is appointed to be a Member of the Council shall before entering upon his office make the oath of allegiance in the same form.

SCHEDULE I

(See Section 7 (f))

The State departments under the Minister-in-Waiting, and now styled as :

1. Ceremonial, Toshakhana and State Garage.

2. Palace Guards and State Stables.

3. Palaces.

4. Reception.

5. Shikarkhana.

74

Provided that His Highness may at any time re-name or re-classify any of the items now included in the departments so styled.

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SCHEDULE II

(Section 14)

CONSTITUENCIES FOR WHICH MEMBERS SHALL BE NOMINATED

Members Constituency Community

1. To be nominated by His Highness.

2 Ladakh Wazarat Buddhist.

1 Skardu Tehsil Muslim

1 Kargil Tehsil Muslim

1 Gilgit Wazarat Muslim

1 North Kashmir Wazarat Muslim

1 South Kashmir Wazarat Muslim

1 Muzaffarabad Wazarat Muslim

1 Jammu Wazarat Hindu (Megh.)

1 Udhampur Wazarar Hindu (Megh.)

1 Srinagar city Hindu other

than Kashmiri

Pandit. 1 Wazarats Jammu,

Udhampur, Reasi,

Kathua, Kashmir,

South and Sri Partap-

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Singh Pura Tehsil. Sikh

II. To be nominated by His Highness on the recommendation of the Ilaqadar of Poonch.

1 Ilaqa Poonch Hindu

III. To be nominated by His Highness on the recommendation of Illaqadar of Chenani.

1. Ilaqa Chenani Hindu

(Sd.) HARISINGH.

Maharaja.

75

Notification

(Issued by order of His Highness the Maharaja Bahadur dated Srinagar, the 27th June, 1932/14 Mar, 1939. Published in Government Gazette dated 24th March,

1989)

*No. 13-L/1989 — Whereas it is necessary to determine the status of Jammu and Kashmir State Subjects in foreign territories and to inform the Governments

of Foreign States as to the position of their nationals in this State; it is hereby commanded and notified for public information, as follows:

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1. That all emigrants from the Jammu and Kashmir State to foreign territories shall be considered State Subjects and also the descendants of these emigrants

born abroad for two generations :

Provided that, these nationals of the Jammu and Kashmir State shall not be entitled to claim the internal rights granted to subjects of this State by the

laws, unless they fulfil the conditions laid down by those laws and rules for the specific purposes mentioned therein.

2. The foreign nationals residing in the State of Jammu and Kashmir shall not acquire the nationality of the Jammu and Kashmir State until after the age

of 18 on purchasing immovable property under permission of an ijazatnama and on obtaining a rayatnama after ten years continuous residence in the Jammu

and Kashmir State as laid down in Notification No. I-L of 1984, dated 20th April, 1927.

3. Certificates of nationality of the Jammu and Kashmir State may, on application, be granted by Minister-in-Charge of the Political Department in accordance

with the provisions of section 1 of this Notification.

* This Notification is to be read subject to the provisions of section 6 of the Constitution of Jammu and Kashmir and the Jammu and Kashmir Grant of Permanent

Resident Certificate (Procedure) Act, 1963 (XII of 1963).

76

THE JAMMU AND KASHMIR GOVERNMENT

GAZETTE

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Vol. 48, Jammu, Thursday, the 5th Poh, 1992 = 19th December, 1935.

Part III Laws and Regulations and Rules passed there under

The Sri Partap Jammu and Kashmir Laws Consolidation Amendment Act

Regulation No. VI of 1992.

Whereas it is expedient to amend the Sri Partap Jammu and Kashmir Laws (Consolidation) Regulation No. IV of 1977 for certain purposes hereinafter appearing

it is hereby enacted as follows:

1. This Regulation may be called "the Sri Pratap Jammu and Kashmir Laws (Consolidation) Amendment Regulation No. VI 1992.

2. In Section 12, after the words "be published" substitute the words "in two consecutive/issues of the Government gazette once in English and once in Urdu"

for the words "in three consecutive numbers of the State Gazette."

Sd/-Barjor Dalai.

President.

Jammu and Kashmir State Assembly.

Received the assent of His Highness the Maharaj Bahadur on 30th day of November 1935.

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Sd/- Barjor Dalai, offg. Prime Minister.

Jammu and Kashmir State Assembly Certificate

The above Regulation was passed by the Assembly on 14th October, 1935/28th Assuj, received the assent of His Highness the Maharaja Bahadur on 30th Novembet

1935/ 15th Ha ghar, 1992, and will come into operation from the date

77

the same is published in the government gazette, according to Section 12 of the Sri Pratap Jammu and Kashmir Laws Consolidation Regulation No. IV of 1977

as amended by Regulation No. VI of 1992.

Sd/- HIRANAND RAINA SECRETARTY

Jammu and Kashmir State Assembly ORDER No. 114-H of 1936

Whereas it is expedient to amend clause I of my order dated 26th March, 1928, under which the High Court of Judicature was constituted, it is hereby commanded

as follows: In clause I of the said order, for the words "one of the Judges shall have revenue experience and shall be styled Judge of High Court and Revenue

Commissioner" the words "The Chief Justice or the other Judge or any one of the other Judges shall be styled Judge of High Court and Revenue Commissioner"

shall be substituted.

Sd/- HARI SINGH

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MAHARAJA

JAMMU AND KASHMIR.

Dated, Jammu, the 12th December, 1936. Extraordinary Registered No. L-1764 Seal

The Jammu and Kashmir Government Gazette.

Vol 52: Jammu Thursday the 10th Kartik 1966-26th Oct. 1939 (No. 2a)

PART III

Laws and Regulations and Rules passed there under : Appeals to His Highness' Act XVI of 1966 An Act to provide for cases in which appeals shall lie to His

Highness in Civil and Criminal cases, and for procedure in such appeals.

Whereas provision has been made in the Jammu and

78

Kashmir Constitution Act of 1966 for the establishment of a Board of Judicial Advisers to advise His Highness in such civil and criminal appeals as shall

lie to His Highness :

And whereases it is expedient to provide for cases in which appeals shall henceforth lie to His Highness and for procedure in such appeals :

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It is hereby enacted as follows :

Short title commencement and Extent

1. (I) This Act shall be called "Appeals to His Highness' Act 1966".

(II) It shall come into force at once. (III) It shall extend to the whole of the Jammu and Kashmir State.

Appeals in Civil cases in which appeals lie:

2. An Appeal shall lie to His Highness—

(a) From any decree or final order passed on appeal by the High Court, when the value of the subject matter of the suit in the court of first instance was

five thousand rupees or upwards and the amount or value of the subject matter in dispute on appeal to His Highness is also the same sum or upwards, or

when the decree or final order involves, directly or indirectly, some claim or question to, or respecting, property of like amount or value;

(b) From any decree or order, when the case, as hereinafter provided, is certified to be fit one for appeal to His Highness:

Provided that,

(i) in cases mentioned in clause (a) where the decree or final order of the High Court affirms the decision of the court immediately below, no appeal shall

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lie to His Highness unless it involves some substantial question of law; and, (ii) no appeal to His Highness shall lie from decree from which under section

102 of the Code of Civil Procedure no second appeal lies.

79

Petition for certificate

3. (i) Whoever desires to appeal to His Highness shall apply by petition to the High Court.

(ii) Every such petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value or nature, the case fulfils

the requirements of clause (a) and the proviso to Section 2, or that it is otherwise a fit one for appeal to His Highness,

(iii) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not

be granted.

Consolidation substantially

4. For the purpose of pecuniary valuation, suits involving the same question for determination and decided by the same Judgment may be consolidated, but

suits decided by separate judgments shall not be consolidated notwithstanding that they involve substantially the same question for determination.

Remission of dispute to trial Court

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5. In the event of any dispute arising between the parties as to the amount or value of the subject matter of the suit in the court of first instance or

as to the amount or value of the subject matter in dispute on appeal to His Highness the High Court may, if it thinks fit, refer such dispute for report

to the court of the first instance and such court shall proceed to determine such amount or value and shall submit its report together with the evidence

to High Court.

Dismissal of Petition

6. Where the High Court refuses to grant the certificate, it shall dismiss the petition, and may pass such orders as to the costs of the petition as it

may think proper.

80

7. (i) Where the certificate is granted, the High Court shall declare the appeals admitted and transmit to the Registrar of the Board of Judicial Advisers

copies of the petition and its order thereon together with the full records of the case in all the courts.

(ii) The Registrar shall enter the appeal in a register to be kept by him for the purpose, shall issue notice to the respondent, and take all necessary

steps to put up the appeal for hearing before the Board of Judicial Advisers.

Hearing

8. The board of Judicial Advisers shall hear the appeal and record their opinion and submit the same to His Highness for final orders

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Stay of execution

9. (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the

High Court otherwise directs.

(2) The High Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to Court :

(a) impound any movable property in dispute or any part thereof or

(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order

which His Highness may make on the appeal, or

c) Stay the execution of the decree appealed from, taking such security from the appellant as the court thinks fit for due performance of the decree appealed

from, or of any order which His Highness may make on the appeal or

(d) place any party seeking the assistance of the court under such conditions or give such other direction

81

respecting the subject matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

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Appeals in Criminal cases

Petition for Certificate

10. An appeal shall lie to His Highness from an order of the High Court in a criminal case in which a sentence of death or imprisonment for life is passed

or upheld by the High Court and which is certified by the High Court to be a fit case for appeal to His Highness.

Dismissal of Petition

11. If on reading the petition and hearing the petitioner's counsel, if any, the High Court considers that the case is not a fit one for appeal to His Highness

it shall dismiss the petition.

Admission of appeal

12. (i) If the High Court considers that it is a fit case for appeal it shall declare the appeal admitted and shall transmit copies of the petition and

its order thereon with the whole record of the case in all the courts to the Registrar of the Board of Judicial Advisers.

(ii) Registrar shall enter the appeal in the register to be kept by him for the purpose and shall send notice of appeal to Government and take all necessary

steps to put up the case before the Board as soon as possible.

82

The Jammu and Kashmir Government Gazette

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Jammu, The 22nd Bhadoon, 1996-7th Sept., 1939 (No. 47)

PART III

LAWS AND REGULATIONS AND RULES PASSED THERE UNDER

HIS HIGHNESS RAJ RAJESHWAR MAHARAJADHIRAJ

SHRI MAHARAJA HARISINGH JI BAHADUR INDAR

MAHINDAR SIPAR-I-SALTANAT-I-INGLISHIA

G.O.S., G.C.I.E., K.C.V.O., LL.D. JAMMU AND KASHMIR

PROCLAMATION

1. In our proclamation, dated 11th February, 1939. We announced our decision as to the further steps to be taken to enable our subjects to make orderly

progress in the direction of attaining the ideal of active co-operation between the executive and the legislature of the State in administering to the

happiness of our people.

2. The Commands that we then issued were given effect to in part before and during the last Jammu Session of the Praja Sabba; and the rest will be given

effect to before and during the ensuing Srinagar Session.

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3. In accordance with our directions, the text of the existing Constitution contained in Act I of 1991 has been thoroughly overhauled and advantage has

been taken of this opportunity to bring that text into line with that of similar Constitutions of this type. Under our further directions a separate part

of the new Constitution has been devoted to the Judicature of the State and this part brings together not merely our existing commands regarding the constitution

and powers of Our High Court of Judicature, but provides also for the establishment and functioning of a Board of Judicial Advisers for advising us in

the disposal of Civil and criminal appeals preferred to us against the decisions

83

of the High Court, and on such other matters as we may choose to refer to the Board for advice. We have no doubt that the establishment of this tribunal

will meet the genuine need for the satisfaction of which public opinion in the State has been pressing for some time.

4. We direct that the Jammu and Kashmir Constitution Act (No. XIV of 1996) be promulgated with effect from Thursday the 7th September, 1939.

5. We repeat the hope that the greatly increased opportunities which the new Constitution confers on the representatives of our people will be so utilised

as to elicit their loyal, intelligent, purposeful co-operation with us and our Government insuring the contentment, happiness and advancement of our beloved

subjects.

Srinagar

22nd September, 1939. Sd/HARI

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SINGH

MAHARAJA

The Jammu and Kashmir Constitution Act No. XIV of 1996

Promulgated by His Highness the Maharaja Bahadur of Jammu and Kashmir on the 22nd day of Bhadon, 1996 corresponding to 7th September, 1939.

PART I

INTRODUCTORY

Preamble

Whereas it is expedient to consolidate and amend the law relating to the Constitution of Government of Jammu and Kashmir, we are hereby pleased to enact

as follows :

Short title

1. This Act may be cited as the Jammu and Kashmir Constitution Act of 1996.

84

Extent and Commencement

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2. This Act shall extend to the whole of the Jammu and Kashmir State and shall come into force at once.

3. In this Act unless there is anything repugnant definitions.

In the Subject or Context

(a) 'Council' means the Council of the Ministers of Jammu and Kashmir referred to in Section 7;

(b) 'Gazette' means the Jammu and Kashmir Government Gazette;

(c) 'His Highness' means His Highness the Maharaja Bahadur of Jammu and Kashmir;

(d) 'Official' and 'Non Official' means respectively a person who is and a person who is not in the Civil or Military Service of the State, provided rules

under this Act may provide for the holders of such offices or any of them as may be specified in the rules not being treated for purposes of this Act as

officials;

(g) 'Rules' means the rules made under this Act; and, (f) 'State' means the State of Jammu and Kashmir.

Government of the State by His Highness

4. The territories for the time being vested in His Highness are Governed by and in the name of His Highness, and all rights, authority and Jurisdiction

which appertain or are incidental to the Government of such territories are exerciseable by His Highness, except in so far as may be otherwise provided

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by or under this Act, or as may be otherwise directed by His Highness.

'His Highness' Inherent Powers

5. Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and Judicial, in relation to the State and its Government

are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in this

85

or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders, and

ordinances by virtue of His inherent authority.

Section 5 A inserted by the No. XLVII of 2011

PART II

THE EXECUTIVE

Vesting of the Civil Administration in the Council

6. Subject always to the provisions of Section 4.

Constitution of the Council

7. The Council shall consist of the Prime Minister for the time being and such other Ministers of States as His Highness may appoint by Royal Warrant of

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appointment. The Prime Minister and the other Ministers shall be responsible to His Highness and shall hold office during the pleasure of His Highness.

The Prime Minister shall be the President of the Council.

Oath of Office of the Ministers

8. Every person appointed to be a member of the Council shall before entering on the duties of his office make and subscribe before His Highness or any

other officer authorised by His Highness in this behalf an oath of allegiance in the form set out in Schedule I.

Rules for the conduct of business of the Council

9. The Prime Minister may with the previous sanction of His Highness make rules for the more convenient transaction of the business of the Council.

86

Advocate General

10. (i) His Highness may appoint a person qualified to be appointed as a Judge of the High Court to be Advocate General for the State subject to such rules

as may be made by the Council in this behalf.

(ii) It shall be the duty of the Advocate General to give advice on such legal matters and to perform such other duties of a legal character as may from

time to time be referred or assigned to him by the Council.

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(iii) The Advocate General shall be appointed for such period and on such salary or other remuneration and on such terms and conditions of service as His

Highness may fix.

Authentication of Orders

11. Orders and other instruments made and executed in the name of His Highness or of the Council shall be authenticated in such manner as may be specified

in rules to be made by His Highness and the validity of an order or instrument which is so authenticated shall not be called in question on the ground

that it is not an order or instrument made or executed by His Highness or the Council as the case may be

Power to Make Rules

12. The Council may make rules not inconsistent with this Act for the following matters :

(a) the term of office of the nominated members of the Praja Sabha and the manner of filling casual vacancies among them;

(b) the conditions under which and the manner in which persons may be nominated as members of the Praja Sabha;

(c) the qualifications of electors, the constitution of constituencies and their territorial extent; the method of election of the numbers of the Praja

87

Sabha and any matters incidental or ancillary thereto;

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(d) the qualifications for being or being chosen as members of the Praja Sabha;

(e) the final decision of doubts and disputes as to the validity of an election;

(f) the prevention of corrupt practices at elections;

(g) the manner in which rules should be carried into effect;

(h) regulating the course of business and the preservation of order in the Praja Sabha;

(i) prohibiting or regularing the asking of questions on and the discussion of any subject specified in the rules;

(j) fixing the dates and the procedure for the presentation and discussion of the annual financial statement;

(k) fixing the halting and travelling allowances of members of the Praja Sabha for attending meetings of the Praja Sabha or of committees thereof;

(l) the duties of the Praja Sabha Under-Secretaries;

(m) the duties of the Advocate General; and,

(n) generally for carrying out the provisions of this Act.

PART III

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THE LEGISLATURE

Legislature

13. Subject to the provisions of this Act, the Legislature of the State shall consist of His Highness and a chamber to be known as the Praja Sabha;

Constitution of the Praja Sabha

14.(i) The Praja Sabha shall consist of the President and Seventy five other members.

88

(ii) The members of the Council shall be ex-officio members of the Praja Sabha.

(iii) Of the remaining members forty shall be elected and the rest nominated by His Highness;

(iv) Thirty three of the elected members shall represent the communities and the general constituencies shown in Schedule II and seven shall represent the

special constituencies shown in Schedule II.

(v) Of the nominated members referred to in sub section (3)

(a) fourteen shall represent the areas and communities shown in Schedule IV and

(b) not more than eight shall be officials.

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(vi) Rules may be made under clause (c) of Section 12 altering the constituencies and their territorial extent as shown in Schedule II and III or the areas

as shown in Schedule IV but such rules not have effect unless sanctioned by His Highness.

(vii) His Highness may, for the purpose of any Bill introduced or proposed to be introduced in the Praja Sabha nominate not more than two members having

special knowledge or experience of the subject matter of the Bill, and these persons shall, in relation to the Bill, have, for the period for which they

are nominated, all the rights of members of the Praja Sabha, and shall be in addition to numbers above referred to.

Duration, Session and Dissolution of the Praja Sabha

15. (1) Every Praja Sabha shall continue for three years from its first meeting:

Provided that His Highness may :

(a) at any time dissolve the Praja Sabha before the expiry of its terms; or

(b) extend the term of the Praja Sabha if in special circumstances he so thinks fit.

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(2) His Highness shall appoint a date not more than six months after the date of expiry of the term of the Praja Sabha or of its dissolution of its session.

(a) There shall be every year at least one session of the Praja Sabha at Jammu and another at Srinagar.

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(b) Subject to the provisions of this section, His Highness may from time to time :

(i) summon the Praja Sabha at such time and place as he thinks fit; or

(ii) prorogue the Praja Sabha; or

(iii) dissolve the Praja Sabha.

Communications by His Highness to Praja Sabha

16. Communication by His Highness to the Praja Sabha may be made :

(a) in person; or

(b) by message sent through the Prime Minister or any other Minister; or

(c) by message sent through the President or any other person presiding under provisions of Section 20.

Communications by the Praja Sabha to His Highness

17. Communications by the Praja Sabha to His Highness shall be made by formal address submitted through the President after motion made and carried in the

Praja Sabha.

Right of Advocate General to speak and take part in the proceedings of the Praja Sabha

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18. The Advocate General shall have the right to speak in the Praja Sabha and to take part in its proceedings and in the proceedings of any of its committees

but shall not, merely by virtue of this section, have a right to vote.

President

19. The President of the Praja Sabha shall be appointed by His Highness for such term as he may fix and he may

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remove the President from office and fill vacancies in that office.

Deputy President

20. (i) The Praja Sabha shall choose one of its members to be the Deputy President thereof and so often as the office of the Deputy President becomes vacant

the Praja Sabha shall choose another member to be Deputy President.

(ii) The Deputy President shall perform such duties of the President as may be assigned to him by the President with the approval of the Council and shall,

during the absence of the President from any sitting of the Praja Sabha, act as President,

(iii) During the temporary absence of the President and the Deputy President from a meeting of the Praja Sabha such person shall act as President as His

Highness may be general or special order in that behalf direct.

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Vacation of and removal from office of the Deputy President

21. A member holding the office of Deputy President shall vacate his office if he ceases to be a member of the Praja Sabha, may, at any time, resign his

office by writing under his hand addressed to the Prime Minister, and may be removed from his office by a resolution of the Praja Sabha passed by a majority

of the members then on the roll of the Praja Sabha.

Praja Sabha under Secretaries

22. His Highness may appoint from among the non-official members of the Praja Sabha as many Under Secretaries and for such period not exceeding the life

of the Praja Sabha as he may think fit. An Under Secretary shall be attached to one or more Ministers and will be assigned such duties in relation do the

business coming before the Praja Sabha as may be prescribed by rules in this behalf.

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Legislative Powers of the Praja Sabha

23. Subject to the provisions of this Act, the Praja Sabha may make Laws for the whole State or any part thereof, and for its permanent residents of the

State substituted by Act No. XLVI by 201 wherever they may be.

Reserved matters

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24. It shall not be lawful for the Praja Sabha to consider or deal with any matter or enact any law relating to or affecting :

(a) His Highness or any member of the Royal Family or the management of the Royal household;

(b) relations, treaties, conventions or agreements between the State and His Majesty the King Emperor of India or the Government of India or with Foreign

powers or the Government of any State in India now subsisting or in force or hereafter to be established or made;

(c) matters of frontier policy including those relating to Ladakh and Gilgit.

(d) such matters relating to the Jagirs of Poonch and Chenani as His Highness may specify;

(e) rights specifically granted to Illaquats or Jagirdars by their Sanads;

(f) the organization, discipline and control of the State forces;

(g) the departments declared by His Highness from time to time as Hazur departments.

(h) the Dharmarth Trust;

(i) the provisions of this Act and the rules made there under and their repeal or modification; and

(j) such other matters as may be specified by His Highness from time to time.

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Voting in the Praja Sabha, Powers of the Praja Sabha to act notwithstanding any vacancy and out of quorum

25. (i) All questions at any sitting of the Praja Sabha shall be determined by a majority of votes of the

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members present and voting, other than the President or person acting as such : Provided that, in the case of an equality of votes, the President or person

acting as such shall exercise a casting vote.

(ii) The Praja Sabha shall have power to act notwithstanding any vacancy in the membership thereof and any proceedings in the Praja Sabha shall be valid

notwithstanding that it is discovered subsequently that some person who was not entitled to attend at or vote or otherwise took part in the proceedings.

(iii) If at any time during a meeting of the Praja Sabha less than one fifth of the total number of members are present, it shall be the duty of the President

or person acting as such either to adjourn the Praja Sabha or to suspend the meeting until at least one fifth of the members are present.

Provisions as to Members of the Praja Sabha

Oath of Members

26. Every member of the Praja Sabha other than an ex-officio member shall, before taking his seat, make and subscribe at a meeting of the Praja Sabha before

the President or such person as may be authorised by His Highness in this behalf, on oath or affirmation in the form set out in Schedule I.

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Vacation of Seats

27. (i) If a member of the Praja Sabha

(a) becomes subject to any of the disqualifications in sub-section (i) of the next succeeding section, or

(b) by writing under his hand addressed to the Prime Minister resigns his seat, his seat shall thereupon become vacant.

(ii) If for two consecutive sessions of the Praja Sabha a member is without the permission of the President

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absent from all meetings thereof, the President may declare his seat vacant.

Disqualifications for membership

28. (i) A person shall be disqualified for being chosen as or for being a member of the Praja Sabha

(a) if he holds any office of profit under His Highness or under the Jagirdars of Poonch and Chenani or under any municipal or local authority :

Provided that this shall not apply to the President or Deputy President or to the ex-officio members or to the members nominated under clause (b) of subsection

(5) section 14 or to the Under Secretaries appointed under Section 22;

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(b) if he is under 25 years of age;

(c) if he is of unsound mind and stands so declared by a competent court;

(d) if he is an undischarged insolvent or being a discharged insolvent and has not obtained from competent court a certificate that his insolvency was caused

by misfortune without any misconduct on his part;

(e) if he is a person against whom a conviction by a criminal court for an offence punishable with a sentence of imprisonment for a term of six months or

more is subsisting or an order binding him to be of good behaviour has been passed or an order of interment or externment passed by a Magistrate or the

Council or His Highness is in force unless a period of five years or such less period as His Highness may allow in any particular case has elapsed since

his release or the expiry of the period specified in the order;

(f) if he has been convicted or has in proceedings for questioning the validity or regularity of an election, have been found guilty of an

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offence or corrupt or illegal practice relating to elections, which has been declared by any law to be an offence or has been declared by any rule or order

of the Council to be a practice entailing disqualification for membership of the Praja Sabha, unless a period of three years has expired from the date

of such conviction or finding;

(g) if, having been elected a member of the Praja Sabha, he has failed to lodge a return of election expenses within the time and in the manner required

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by the rules under this Act, unless a period of three years has expired from the date by which the return ought to have been lodged or His Highness has

removed the disqualification.

(ii) A person shall not be capable of being chosen a member of the Praja Sabha while he is serving a sentence of imprisonment for a criminal offence, or

is under detention for failure to furnish security for keeping the peace or for good behaviour.

Privileges

29 (1) "Power, privileges and immunities of the Legislative Assembly and its Members and Committees: (2) in other respects, the powers, privileges and immunities

of the Legislative Assembly and of the Members and the Committees thereof shall be such as may from time to time be defined by law and until so defined

shall be those of the Parliament of India and its Members and Committees."

Allowances and Honoraria

30. The President, the Deputy President and the Un-der-Secretaries of the Praja Sabha shall receive such honoraria as may be determined by His Highness.

The members of the Praja Sabha shall be entitled to receive such halting

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and travelling allowances as may be fixed by rules in this behalf.

LEGISLATIVE PROCEDURE

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Return of Bills, Assent and Act

31.(1) Where a Bill has been passed by the Praja Sabha, the Prime Minister may, instead of presenting it for the assent of His Highness, return it to the

Praja Sabha for reconsideration in whole or in part, together with any amendments which he may recommend.

(2) Where a Bill has been passed by the Praja Sabha and has not been returned to it by the Prime Minister for reconsideration, it shall be submitted for

the assent of His Highness, who may declare either that he assents thereto, or withholds his assent there from.

(3) A Bill which is assented to under the last preceding sub-section shall be published in the Gazette in English and shall then become an Act : "become

an Act and have the force of law as soon as it is published in either of the aforesaid languages and have the force of law".

(4) In all the Regulations in force in the State on the date on which this Act comes into force and in the rules, orders proclamations and notifications

issued under such Regulations, the word 'Act' shall, unless the context otherwise requires, be substituted for the word 'Regulation'.

Questions and Resolutions

32. Subject to such restrictions and conditions as are imposed by this Act or may be imposed by rules or standing orders, any member may

(a) ask questions; and

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(b) move resolutions;

Provided that no question shall be asked and no resolution shall be moved which affects the religious

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rights, usages, endowments, or personal law of any community and is not asked or moved by a member of that community.

PROCEDURE GENERALLY

Language

33. The business of the Praja Sabha shall be transacted in Urdu, but any member may address the Praja Sabha in English.

Provided that the text of all Bills and amendments thereto moved in, and of all Acts passed by, the Praja Sabha, which shall be treated as authoritative,

shall be in English.

Provision in case of failure by the Praja Sabha to pass legislation

34. Where the Praja Sabha refuses to leave to introduce, or fails to pass in form recommended by the Council and Bill, His Highness may declare that the

proposed legislation is essential for the good government, safety or tran-quility of the State and such Bill shall, on such declaration, become an Act

as if it had been passed by the Praja Sabha and assented to by His Highness.

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Restrictions on discussion in the Praja Sabha

35. If the Prime Minister at any time certifies that the discussion of a Bill introduced or proposed to be introduced in the Praja Sabha or of any specified

clause of a Bill, or of any amendment moved or proposed to be moved to a Bill or of any resolution or of any amendment thereto would affect the safety

or tranquility of the State or any part thereof, he may direct that no proceedings, or no further proceedings, shall be taken in relation to the Bill,

clause or amendment, or resolutions or its amendment, and effect shall be given to direction.

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Procedure for introducing bills affecting religious rights etc.

36. It shall not be lawful, without the previous sanction of His Highness, to introduce, consider or pass any Bill affecting the religious rights, Usages,

endowments or personal law of any community, and no such Bill shall be deemed to be passed by the Praja Sabha unless two thirds of the members of the Praja

Sabha from the community affected are present at the meeting of the Praja Sabha and vote in its favour.

Bar to discuss the conduct of a member of His Highness Board of Judicial Advisers or of a Judge of the High Court

37. No discussion shall be allowed in the Praja Sabha with regard to the conduct of any Judge of the Supreme Court of India or of any Judge of High Court

in the discharge of his duties.

ORDINANCES

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Ordinances

38. Notwithstanding anything contained in this Act, the Council may, in case of emergency or where immediate legislation is required in any matter affecting

the peace and good government of the State, submit to His Highness an Ordinance and such Ordinance on being assented to by His Highness shall have the

force of law for a period not exceeding six months from the date of its promulgation.

Bar to repeal or alter ordinance

39. It shall not be lawful for the Praja Sabha to repeal or alter any ordinance passed under Section 38.

Standing Orders

40. Standing orders may be made and altered by the Praja Sabha providing for the conduct of business and the procedure to

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be followed in the Praja Sabha. Any Standing Order which is repugnant to the provisions of this Act or to any rules made there under shall, to the extent

of that repugnancy but not otherwise, be void.

PROCEDURE IN FINANCIAL MATTERS

Annual Financial Statement

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41. The Council shall in respect of every financial year cause to be laid before the Praja Sabha a statement of the estimated receipts and expenditure of

the State for the year :

Provided that the estimated receipts and expenditure relating to the Jagirs of Poonch and Chenani shall be shown separately in the Statement.

Classification of expenditure

42. The estimates of the expenditure embodied in the annual financial statement shall show separately:

(a) the sums required to meet expenditure described by this Act as expenditure charged upon the revenues of the State, and

(b) the sums required to meet other expenditure proposed to be met from the revenues of the State.

Expenditure charged on the revenues of the State

43. The following expenditure shall be the expenditure charged on the revenues of the State :

(a) Expenditure on matters reserved from the cognizance of the Praja Sabha under Section 24.

(b) Contributions payable to other Governments.

(c) Expenditure obligatory under any law.

(d) Interest on loans and sinking fund charges

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(e) "(dd) The salaries and allowances of the Speaker and the Deputy Speaker of the Legislative Assembly."

(f) Inserted by Act XLVII of 2011 or with his sanction

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or under the rules sanctioned by His Highness or the Council.

(g) Contributions, grants and scholarships sanctioned by His Highness.

(h) Salaries of the Judges of the High Court and the members of His Highness' Board of Judicial Advisors.

(i) Salaries of such other officers as His Highness may specify from time to time.

(j) Such other expenditure as His Highness may specify from time to time.

Decision of the Prime Minister regarding classification of expenditure final

44. Any question whether any proposed expenditure falls within a class of expenditure charged on the revenues of the State shall be decided by the Prime

Minister and such decision shall be final.

Procedure in the Praja Sabha with respect to estimates

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45.(1) So much of the estimates of expenditure as relates to the expenditure charged on the revenues of the State shall not be submitted to the vote of

the Praja Sabha.

(2) So much of the said estimates as relates to the other expenditure shall be submitted to the Praja Sabha in the form of demands or grants. The Praja

Sabha shall have power to assent or to refuse to assent to any demand or to assent to a demand subject to a reduction of the amount specified therein.

Provided that

(a) the council shall have power in relation to any such demand, to act as if it had been assented to, notwithstanding the withholding of such assent or

the reduction of the amount therein specified, if the Council considers that the expenditure provided for by the demand

100

is necessary for the carrying on of any department or for the discharge of the Council's responsibility for its administration; and

(b) His Highness may in cases of emergency authorise such expenditure as may in his opinion be necessary for the safety or tran-quility of the State or

any part thereof or for the carrying on of any department.

(3) No demand for a grant shall be made except on the recommendations of the Council.

Supplementary expenditure

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46. If in respect of any financial year further expenditure from the revenue of the State becomes necessary over and above the expenditure authorised for

that year, the Council shall have the power to authorise that expenditure. A statement of the expenditure so authorised shall be presented to the Praja

Sabha along with the financial statement for the following year.

Special provisions as to Financial Bills

47. (1) A bill or amendment making provisions.

(a) for imposing, increasing or decreasing any tax, or

(b) for regulating the borrowing of money or the giving of any guarantee by the Council or for amending the law with respect to any financial obligations

under taken by the Council, or

(c) for declaring any expenditure to be expenditure charged on the revenue of the State shall not be introduced or moved except with the previous sanction

of the Prime Minister.

(2) A Bill or amendment shall not be deemed to make provision for any of the purposes aforesaid by reason only that if provides for the imposition of fines

or other pecuniary penalties, or for the demand or payment of fees for licenses or fees for service rendered.

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(3) A Bill which, if enacted and brought into operation, would involve expenditure from the revenues of the State shall not be passed by the Praja Sabha

unless the Council has recommended to the Praja Sabha the consideration of the Bill.

PART IV

The Judicature

The High Court

Constitution and title of the High Court

48. (a) The high court referred to in this Act is the High Court established in the State by Order No. 1 of 1985 and styled as the High Court of Judicature,

Jammu and Kashmir State.

(b) The High Court shall consist of a Chief Justice and two or more other judges as His Highness may from time to time think fit to appoint.

Tenure of office of Judges

49. Every Judge of the High Court shall be appointed by His Highness and shall hold office until he attains the age of fifty five years, unless His Highness

otherwise directs :

(a) Judge may by resignation under his hand addressed to the Prime Minister resign his office;

(b) a judge may be removed from his office by order of His Highness on the ground of misbehaviour, or of infirmity of mind or body.

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Precedence of Judges

50. (i) The Chief Justice shall have rank and precedence before the other Judges.

(ii) All the other judges shall have rank and precedence according to the seniority of their appointments.

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Qualification of Judges

51. A person shall not be qualified for appointment as a Judge of the High Court unless he—

(a) is a barrister of England or Ireland or a member of the Faculty of Advocates in Scotland of not less than ten years standing; or

(b) has, for at least three years, held a judicial office in the State not inferior to that of a District Judge; or

(c) has for at least five years held a judicial office in the State or in British India, not inferior to that of a subordinate judge, or a Judge of. a Small

Cases Court; or

(d) is an Advocate of the High Court of any High Court in British India, and is a barrister of England or Ireland or a member of the Faculty of Advocates

in Scotland or a law graduate of any recognised University in India who has been practising as and Advocate of the High Court or any High Court in British

India for a period of atleast ten years.

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Salaries of Judges

52. The Chief Justice and the other Judges of the High Court shall receive such salaries and allowances as His Highness may from time to time fix in this

behalf.

Oath of Office

53. Every person appointed to be a Judge of the High Court shall, before he enters upon his office, make or subscribe before His Highness or some person

appointed by him as oath according to the form set out in that behalf in Schedule I of this Act.

Seal

54. The High Court of Judicature shall have and use as occasion may require a seal bearing a device and impression of the Jammu and Kashmir State Emblem

with an

103

exergue or label surrounding the same , with the following inscription. "The Seal of the High Court of Judicature, Jammu and Kashmir" The said seal shall

be delivered to and kept in the custody of the Chief Justice or of an officer of the court from time to time nominated by the Chief Justice.

Writs etc.

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55. All writs, summons, precepts, rules, order and other mandatory processes to be used by the High Court shall run and be in the name and style of His

Highness and shall be sealed with the seal of the High Court.

56. (i) The High Court is a court of record.

Jurisdiction

(ii) The High Court shall have jurisdiction to hear and determine any original civil suit or other proceeding of which the value is not less than rupees

twenty thousand and every such suit or proceeding shall be instituted in the High Court.

(iii) The High Court shall have jurisdiction to entertain and dispose of such appeals, revisions and other cases—civil, criminal or revenue—as it may be

empowered to do under any enactment in force in the State.

Place of sitting

57. The usual place of sitting of the High Court shall be Jammu and Srinagar, and His Highness may be order direct for what period the High Court shall

sit at each such place.

Special Commissions and Circuit

58. Whenever it appears to the Chief Justice convenient that the jurisdiction and powers vested in the High Court by this Act or by any other enactment

for the time being in force should be exercised in any place within the jurisdiction of any court subject to the superintendence of the High Court, or

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at several such places by way of circuit, one

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or more judges of the High Court shall with the previous sanction of His Highness hold court at such place or places.

Procedure in original cases

59. Except as provided by any enactment for the time being in force, all original proceedings and suits shall be heard and decided by a single Judge of

the High Court.

Procedure of appeals

60. (i) Except as otherwise provided by any enactment for the time being in force and subject to any rules made in this behalf, the jurisdiction of the

High Court of judicature may be exercised by a single Judge of the Court or bench of two or more Judges of the Court.

(ii) Except as otherwise provided by any enactment for the time being in force, an appeal from any order against which an appeal is permitted by any law

for the time being in force passed or by a single Judge of the High Court shall lie to Bench consisting of two other Judges of the High Court.

(iii) Unless such an appeal is prohibited by any enactment for the time being in force, an appeal from an appellate decree made by a single Judge of the

High Court shall lie to a Bench consisting of two other Judges of the High Court, where the Judge who passed the decree declares that the case is a fit

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one for appeal.

Power to refer question to a bench or a be

"62-A. If the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of

this Act or the Constitution of India as applied to the state by the Constitution of India as applied to the State by the Constitution (Application to

Jammu and Kashmir) Order, 1954, the determination of which is necessary for the disposal of the case, it shall withdraw the case and may :

105

(a) either dispose of the case itself; or

(b) determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its Judgment on

such question and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment."

Superintendence and control of subordinate Courts

64. (i) Subject to such rules and regulations as His Highness may make, the High Court shall have superintendence and control over all courts for the time

being subject to its appellate or revisional jurisdiction, and all such courts shall be subordinate to the High Court.

(ii) The Chief Justice, or a Judge of the High Court authorised by him in this behalf shall from time to time visit and inspect the proceedings of the courts

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subordinate to the High Court and shall give such decisions in matters not provided for by law as may be necessary to secure the due administration of

Justice.

Registrar and Dy. Registrar

65. (i) The High Court may, subject to the sanction of the Council and on such terms as to salary allowances, promotion, leave, suspension and dismissal,

as may be sanctioned by the Council, appoint a Registrar and a Deputy Registrar.

(ii) The High Court may delegate to the Registrar or the Deputy Registrar or both such judicial, quasi judicial or administrative powers as it may deem

fit.

REQUISITIONS BY HIS HIGHNESS

Power to make

"66-A. If at any time it appears to the council that a question of law and fact has arisen, or is likely to arise,

106

which is of such obtain the opinion of the High Court upon it, it may refer the question to that Court for consideration and the Court, may after such hearing

as it thinks fit, report to the Council its opinion theorem."

Continuous the Courts subordinate thereto for such proceedings books entries, statistics and accounts as it thinks fit.

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(i) to provide for the inspection of courts subordinate there to and the supervision of the work thereof.

(ii) to regulate all such matters as it may think fit with a view to promote the efficiency of the judicial and ministerial officers of the High Court and

of the courts subordinate thereto, and the maintaining of proper discipline among those officers; and

(iii) prescribing the qualifications for and admission of persons to be Advocates, Vakils and attorney-at-law of the High Court and providing for the removal

of suspension from practice, on reasonable cause, of the said Advocates, Vakils and at-torneys-at-law.

(iv) Such rules shall be made with the approval of a majority of the Judges of the court and the sanction of the Council.

Admission of Advocates

68. The High Court shall have the power to approve, admit and enrol such and so many Advocates, Vakils and atorney-at-law as it may deem fit.

Contempt

69. The High Court shall have the power to punish with fine not exceeding rupees one thousand or with simple imprisonment for a period not exceeding six

months or with both any person who is guilty of contempt in relation to itself or to any other court subordinate to it.

107

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Provided that the High Court shall not take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it when such contempt

is an offence punishable under the Ranbir Penal Code.

Saving Jurisdiction of Judge High Court

70. Notwithstanding anything provided in any enactment to the contrary, no Judge of the High Court sitting in a full bench thereof shall by reason of his

having decided or otherwise dealt with any case, be barred from hearing and deciding the case.

HIS HIGHNESS' BOARD OF JUDICIAL ADVISERS

His Highness' Board of Judicial Advisers

71. Every person appointed to be a member of the Board shall, before he enters upon his office, make and subscribe before His Highness or some person appointed

by him an oath according to the form set out in that behalf in Schedule I or this Act.

(i) His Highness may appoint any person as an ex-officio member of the Board of Judicial Adviser to discharge the functions of the Board during the period

such Board is not in session, provided that such ex-offico member shall not sit on the bench of the Board for hearing any appeal or other matters as is

referred to such Board for advice.

(ii) His Highness may make rules regulating the procedure regarding the filing of appeals of His Highness, the place of places and the period of sittings

of the Board of Judicial Advisers and the hearing of such appeals and other matters as are referred to the Board for advice.

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(iii) The board may, from time to time with the sanction of His Highness add to, alter or amend the rules of procedure in such manner as they think fit.

108

Royal Prerogative

72. Nothing herein contained and nothing contained in any other enactment for the time bringing force shall be deemed to affect in any way or derogate from

the inherent power and prerogative of His Highness or to affect in any way his prerogative of mercy and pardon, or his power of remitting, commuting or

reducing sentences conditionally or otherwise.

PART V

MISCELLANEOUS

Revenues of the Jammu and Kashmir State

73. The revenues of the Jammu and Kashmir State shall be received for and in the name of His Highness.

Explanation — The expression' revenues of the Jammu and Kashmir.

State means all revenues and public moneys raised or received by the State and includes :

(a) all fines and penalties incurred by the sentence or order of any court of justice in the State and all forfeitures, for crimes or any movable or immovable

property in the State; and,

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(b) all movable and immovable property in the State escheating or lapsing for want of an heir or successor and all property in the State devolving as bona

vacantial for want of a rightful owner.

Power to acquire property, borrow moneys, make contract, etc.

74.(1) The executive authority of the Council shall extend to the grant, sale disposition or mortgage of any public property, to the purchase or acquisition

of property, to the making of contracts and to borrowing on the security of the revenues of the State for the purposes of the Government of the State.

109

(2) All such contracts and all assurances of property made by the Council shall be executed by such persons and in such manner as the Council may direct

or authorise;

(3) Any such person making any such contract or assurance on behalf on the Council shall not be personally liable in respect thereof.

PART VI REPEAL AND SAVINGS

Repeal and Saving of laws and rules

76. (1) The Regulations specified in Schedule V are hereby repealed to the excent shown in the third column of the said Schedule.

(2) Notwithstanding, the repeal of Regulation I of 1991, but subject to the other provisions of this Act, all the law in force in the State immediately

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before the commencement of this Act shall continue in force until altered or repealed or amended by competent authority.

(3) All notifications published, proclamations issued, powers conferred, jurisdiction vested forms prescribed, local limits defined, and orders, rules and

appointments made under any Regulation Order, Law or Rule, hitherto in force, which are in force immediately before the coming into operation of this Act

and which are not in consistent with any of the provisions of this Act, shall be deemed to have been respectively published, issued conferred vested, prescribed

defined and made under this Act, and shall remain in force until repealed or modified either expressly or by implication by competent authority.

110

TRANSITIONAL PROVISIONS

Continuance of existing Praja Sabha

77. Notwithstanding the repeal of the Electoral : "Saving as regards Letters Patent 76-A. : The provisions of the Letter, Patent granted to the High Court

on 28th May, 1943, shall continue to remain in force except in so far as these are inconsistent with the provisions of this Act or of any other law for

the time being in force."

Power of Council to remove difficulties

78. In respect of any unforeseen difficulties which may arise in relation to the transition from the provisions of the Electoral Regulation XIV of the 1990,

Regulation of I of 1991 and Regulation XIII of 1995 to the provision of this Act and for which provision has not been made in this Act, the Council may

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make such temporary provision for removing such difficulties as it may consider necessary.

SCHEDULE-I

(See section 8, 26 and 53) Forms of Oath

OATH FOR MINISTERS

Form A

I.........A, B.........having been appointed Minister, do

solemnly swear that I will be faithful and be truly loyal to His Highness Raj Rajeshwar Maharajadhiraj Shri Maharaja Hari Singh Ji Bahadur, Inder Mahindar

Sipar-i-Saltanat-i-Inglish, G.C.S.I, G.C.I.E.K.C.V.O, LL.D of Jammu and Kashmir, his heirs and successors and that I will faithfully discharge the duty

upon which I am about to enter.

I further do solemnly swear that I will not directly or indirectly communicate or reveal to any person or persons

111

any matter which shall be brought under my consideration, or shall become known to me as a Minister, except as may be required for the due discharge of

my duties as such Minister or as may be specially permitted by His Highness.

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OATH FOR MEMBER OF HIS HIGHNESS BOARD OF JUDICIAL ADVISERS AND FOR JUDGES OF THE HIGH COURT

I, A-B.........having been appointed a member of His Highness' Board of Judicial Advisers/Chief Justice (or a Judge) of the High Court of Judicature Jammu

and Kashmir State do solemnly swear that I will be faithful and be truly loyal to His Highness Raj Rajeshwar Maharajadhiraj Shri Maharaja Harisingh Ji

Bahadur, Indar Mahindar Sipar-i-Saltanat-i-Inglish a G.C.S.I. G.C.I.E. K.C.V.O., LL.D of Jammu and Kashmir, his heirs and successors and that I will faithfully

perform the duties of my office to the best of my ability, knowledge and judgment and will administer justice according to the law and usages of the realm

without fear or favour, affection or illwill.

OATH FOR MEMBERS OF THE PRAJA SABHA

I, A.B.........having been elected/nominated a member of this Praja Sabha do solemnly swear that I will be faithful and bear true allegiance to His Highness

Raj Rajeshwar Maharajadhiraj Shri Maharaja Harisigh Ji Bahadur Indar Mahindar Sipar-i-Saltanat-i-biglish, G.C.S.I. G.C.I.E., K.C.V.O., LL.D of Jammu and

Kashmir his heirs and successors and that I will faithfully discharge the duty upon which I am about to enter.

112

SCHEDULE-II

(See Section 4) (General Constituencies)

No. Name of Extent of Members

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Constituency Constituency

(A) Muslim

1. Jammu City Muslim The City of Jammu I

2. Jammu Rural Muslim The Wazarat of I

Jammu excluding Jammu City

3. Udhampur Muslim The Wazarat of I

Udhampur

4. Reasi Muslim -do- Reasi I

5. Kathua Muslim -do- Kathua I

6. Mirpur Kotli The Tehsils of Mirpur I

and Kotli

7. Bhimber The Tehsil of Bimber I

8. Haveli Mendhar The Tehsils of Haveli I

and Mendhar

9. Bagh Sudhnuti The Tehsil of Bagh I

and Sudhnuti Jagir of Poonch.

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10. Amira Kadal Ward No. 1 Srinagar I

City

11. Raina Wari Maharajaganj Ward Nos. 5, 6 and 8 I

Srinagar City

12. Fateh Kadal Tankipura Ward Nos. 2 and 3 I

Srinagar City

13. Shah Hamaan Ward No. 4 Srinagar I

City

14. Tashwan Ward No. 7 Srinagar I

City

15. Awantipur The Tehsils of Srinagar I

excluding Srinagar City

and Pulwama

16. Anantnag The Tehsil of I

Anahtnag

17. Kulgam The Tehsil of Kulgam I

18. Handwara Uttarachipura Tehsil I

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19. Badgam Sri Patapsinghpura I

Tehsil

20. Baramulla The Tehsil of I

Baramulla

21. Muzafarabad The Wazarat of I

Muzafarabad

113 B) Hindu

22. Jammu City North Ward Nos. 1, 2 and 3 I

Jammu City

23. Do South Ward Nos. 4, 5, 6 and I

7 Jammu City

24. Jammu Rural Hindu The Wazarat of Jammu I

excluding Jammu City

25. Udhampur Hindu The Wazarat of I

Udhampur

26. Reasi Hindu do Wazarat of Reasi I

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27. Kathua Hindu do Wazarat of Kathua I

28. Mirpur Hindu do Wazarat of Mirpur I

29. Srinagar South Wards Nos. 1, 2 and 3 I

Srinagar City

30. Srinagar North Wards Nos. 4, 5, 6, 7 I

and 8 Srinagar City ,

31. Kashmir Hindu The Wazarats of I

Kashmir North, Kashmir South

(excluding Srinagar City and

Muzaffarabad)

32. Mirpur-Poonch Sikh The Wazarat of Mirpur I

and Jagir of Poonch

33. West Kashmir Sikh The Wazarat of I

Muzaffarabad and Tehsils

Uttarmchipura and Baramulla

"(i) Such allowances as are admissible to the members of the Constituent Assembly.

"(ii) This provision shall be deemed to have come into force from 1st April, 1955."

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114

SCHEDULE IV

(See Section 14)

AREAS FOR WHICH MEMBERS SHALL BE NOMINATED

S.N. Area Community Members

1. Ladakh Wazarat Buddhist I

2. Skadu Tehsil Muslim I

3. Kargil Tehsil Muslim I

4. Gilgit Wazarat Muslim I

5. North Kashmir Wazarat Muslim I

6. South Kashmir Wazarat Muslim I

7. Muzaffarbad Wazarat Muslim I

8. Jammu Wazarat Hindu I

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9. Udhampur Wazarat Hindu I

10. Srinagar City Hindi other than I

Kashmiri Pandit

11. Poonch Jagir Hindu I

12. Chenani Jagir Hindu I

13. Wazarats Jammu,

Udhampur Reasi,

Kathua, Kashmir South

And Sripratap Sing

Pura Sikh I

SCHEDULE V

(See Section 76)

REPEALED REGULATIONS AND ORDERS

S. No. Name and No. of Regulation Extent of repeal repealed

1. Sri Pratap Jammu and Kashmir Laws

consolidation Regulation IV of 1977 Section 12

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2. Order No. 1 of 1985 The whole

3. The Electoral Regulation

No. XIV of 1990 The whole

4. The Jammu and Kashmir

Regulation No. 1 of 1991 The whole

5. The Jammu and Kashmir

Regulation No. XIII of 1995 The whole

His Highness' Government Jammu and Kashmir Revenue Secretariat

Memorandum For Submission to His Highness The Maharaja Bahadur

No. V. 43 / dated Srinagar the 21-5-1 947

115

Subject : Jurisdiction of civil courts in state subject certificate cases.

The definition of the term "State Subject" as contained in Notification No. I-L/84 has been sanctioned by His Highness the Maharaja Bahadur. No procedure

for grant of certificate under this definition being given in this Notification, separate orders appear to have been obtained from time to time in his

behalf. These orders constitute rule on the subject and regulate the grant and revocation of these certificates By virtue of these orders the power to

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grant or refuse to grant a State Subject certificate rests in Revenue Officers. Except however in the case of decisions made by the State Subject Certificates

Enquiry Commission the power of interference by civil courts as provided in order No. 22-H of 1937 is not expressly defined anywhere. But in actual practice

aggrieved persons approach civil courts for establishment of their right whether such right has been denied by a Commission of Enquiry or rejected otherwise.

According to the ruling given by His Highness' Board of Judicial Advisers, in Mr. Mukund Lai's case, the Revenue Minister is final authority to exercise

jurisdiction in the matter of grant of certificates. But at present even after a decision is given by the Revenue Minister an aggrieved party approach

a civil court and obtains the status of a State Subject, and thus an order of the so-called final authority is nullified. This appears to be an anomalous

position. In the State Subject Certificate procedure Rules submitted for sanction it was intended to bar the jurisdiction of Civil Court in the matter

of grant or revocation of these certificates but the Law Department did not agree on the ground that the right to move a civil court was a substantial

right and could be denied if at all by legislation. Hence no such provision could be made therein.

Since the question of State Subject certificates is a question of high policy it does not seem sound to introduce any legislation through the Legislature

and may be treated like reserved matters. It should, the Revenue Minister is of the opinion, be left to the pleasure of His Highness who may be pleased

to decide such issue in exercise of the inherent

116

powers vesting in him under Section 5 of the Constitution Act. Therefore, in the larger interests of State Subjects and as a matter of policy, the Revenue

Minister is of the opinion that the jurisdiction of civil courts should be barred in State subject cases on the analogy of certain revenue matters in which,

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as provided in Section 139(2) of Land Revenue Act, 1996 and Section 25 of the Alienation of Land Act, 1995, the jurisdiction of civil courts is excluded.

He, accordingly, submits through the

Hon'ble Prime Minister the following draft order duly vetted by the Legal Remembrances and Advocate General for Commands of His Highness the Maharaja Bahadur

:

(i) In exercise of the powers inherent in us under Section 5 of the Jammu and Kashmir Constitution Act, 1996, we hereby order that no suit shall lie in

any civil court in respect of the matter for grant, dismissal, or revocation of State Subject certificates or in respect of declaration of a person being

a State subject and that the orders of the Revenue Minister passed in exercise or revisional jurisdiction in such cases shall be final.

(ii) that this order be published in the Government Gazette.

Sd/- Anant Ram. REVENUE MINISTER

117

Letters Patent (Jammu and Kashmir)

Nagpur (Madhya Pradesh High Court)

In witness whereof We have caused these Our Letters to be made Patent.

Witness Ourself at Westminster the 2nd day of January in the year of Our Lord one thousand nine hundred and thirty-six and in the Twenty-six Year of Our

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Reign.

(Sd.) SCHUSTER. By warrant under the King's Sign Manual

Patna

In witness whereof We have caused these Our Letters to be made Patent. Witness Ourself at Westminster, the Ninth day of February, in the year of Our Lord

One thousand nine hundred and sixteen and in the sixth year of Our Reign.

(Sd.) SCHUSTER. By warrant under the King's Sign Manual.

[THE] LETTERS PATENT (JAMMU&KASHMIR)

Whereas the High Court of judicature, Jammu and Kashmir State was established by Order No. 1 of 1985 and by the Jammu and Kashmir Constitution Act, 19%

and whereas we consider it necessary and expedient to issue Letters Patent to the aforesaid High Court.

1. Now, we upon full consideration of the premises and of Our Special Grace, certain knowledge and mere motion, hereby ordain that the said High Court of

Judicature shall, until further or other provision shall be made by Us. Our

118

heirs and successors, in that behalf in accordance with the said recited Act of 1996, consist of the Chief Justice and [one or more Judges] as we may from

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time to time think fit to appoint. The first Chief Justice and the first Judges to whom these presents are granted for themselves and their successors-in-office

being Rai Bahadur Ganga Nath, Chief Justice, Wazir Janki Nath and Kazi Masud Hassan, Judges being respectively qualified as in the said Act is declared.

[0] Substituted for "two or more Judges" by an amendment dated 21-12-1945 published in J&K, Govt. Gaz., dated 5-1-1945.

2. And We do hereby ordain that every Judge of Our High Court including the Chief Justice shall be appointed by Us and the Chief Justice, if taken from

a High Court in British India, shall retire when he attains the age of sixty-five and the Judge when he attains the age of fifty-five years provided:

(a) A Judge may by resignation in his band addressed to Us resign his office, and

(b) A Judge may be removed from office by Our order .on the ground of misbehaviour or infirmity of mind or body.

The Chief Justice and every Judge of the High Court shall get such salary or other emoluments, pension, leave and leave allowance as may be prescribed by

Us in a separate order in pursuance of these presents.

3. And We do hereby ordain that the Chief Justice shall have rank and precedence before the other Judges and all other Judges shall have rank and precedence

according to the seniority of their appointment.

4. And We do hereby ordain that the Chief Justice and every Judge of the said High Court of Judicature previously to entry upon execution of the duties

of his office shall make and subscribe the following declaration before such authority or person as We may commission to receive it :

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"I,..........A. B., having been appointed Chief Justice (or a Judge) of the High Court of Judicature, Jammu and Kashmir State, do solemnly swear that I

will be faithful and be truly loyal to His Highness Rai Rajeshwar Maharajadhiraj Shri Maharaja Hari Singh Ji Bahadur, Indar Mahindar Sipar-i-Saltant-i-Inglish,

G.C.S.I., G.C.I.E., K.C.V.O., LL.D., of Jammu

119

and Kashmir, his heirs and successors and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment and will

administer justice according to the law and usages of the realm without fear, or favour, affection or ill will."

5. And We do hereby grant ordain and appoint that the said High Court shall have and use, as occasion may require, a seal bearing a device and impression

of the Jammu and Kashmir Coat of Arms with an exergue or label surrounding the same, with the following inscription :

"The seal of the High Court of Judicature, Jammu and Kashmir."

The said seal shall be delivered to and kept in the custody of Chief Justice or of an officer of the Court from time to time nominated by the Chief Justice.

6. And We do hereby further ordain that all writs, summons, precepts, rules, orders and other mandatory processes to be used by the said High Court shall

run and be in the name and style of His Highness and shall be sealed with the seal of the High Court.

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7. And We do hereby authorize and empower the Chief Justice of the said High Court of Judicature from time to time, as occasion may require, and subject

to any rules and restrictions which may be prescribed by Our Government to appoint so many and such clerks and other ministerial officers as shall be found

necessary for the administration of justice and the due execution of all the powers and authorities granted and committed to the said High Court by these

Our Letters Patent. And it is Our further will and pleasure and We do hereby for Us, Our heirs and successors give, grant, direct and appoint that all

and every officers and clerks to be appointed as aforesaid shall have and receive respectively such reasonable salary as the Chief Justice shall from time

to time appoint for each office and place respectively and as We shall approve of:

Provided always and it is Our will and pleasure that all and every the officers and clerks to be appointed as aforesaid shall be resident within the limits

of the jurisdiction of the said Court so long as they shall hold their respective offices. But this proviso shall not interfere with or

120

prejudice the right of any officer or clerk to avail himself of leave of absence under any rules prescribed by Us and to absent himself from the said limits

during the term of such leave in accordance with the said Rules.

Admission of Advocates, Vakils and Attorneys

8. And We do hereby consistently with section 68 of the Jammu and Kashmir Constitution Act, 1996, authorize and empower the said High Court of Judicature

to approve, admit and enroll such and so many Advocates, Vakils and Attorneys as to the said High Court shall seem meet and such Advocates, Vakils and

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Attorneys shall be and are hereby authorized to appear for the suitors of the said High Court and to plead or to act, or to plead and act for the said

suitors according as the said High Court may by its rules and directions determine and subject to such rules and directions.

9. And we do hereby ordain that the said High Court of Judicature shall have power to make rules for the qualification and admission of proper persons to

be Advocates and Vakils of the said High Court and shall be empowered to remove or to suspend from practice, on reasonable cause, the said Advocates and

Vakils; and no person whatsoever but such Advocates and Vakils shall be allowed to act or plead for, or on behalf of, any suitor in the said High Court,

except that any suitor shall be allowed to appear, plead or act on his own behalf or on behalf of a co-suitor.

Civil Original Jurisdiction of the High Court

10. And we do hereby ordain that the said High Court of Judicature shall have jurisdiction to hear and determine any suit or original proceeding of which

the value is not less than rupees ten thousand where the said suit or original proceeding relates to any right, title or obligation arising in the towns

of Srinagar and Jammu or anywhere else within Our State and notwithstanding anything contained in any section of the Code of Civil Procedure every such

suit or proceeding shall be instituted in the said High Court.

Extraordinary Original Jurisdiction

11. And we do further ordain that the said High Court of Judicature shall have power to remove and to try and

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121

determine, as a court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any court subject to its superintendence

when the said High Court shall think proper to do so, either on the agreement of the parties to that effect or for purposes of justice, the reasons for

so doing being recorded on the proceedings of the said High Court.

12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in the exercise

of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the

said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise

of the power of superintendence) or one Judge of the said High Court or one Judge of any Division Court and that not withstanding anything here in before

provided an appeal shall lie to the said High Court from a judgment of "one Judge of the said High Court or one Judge of" any Division court, consistently

with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of

appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case

is a fit one for appeal; but that the right of appeal from other judgments of the Judges of the said High Court or of such Division Court shall be to Us,

Our Heirs or successors and be heard by Our Board of Judicial Advisers for report to Us.

13. And we do further ordain that the said High Court of Judicature shall have the like power and authority with respect to the persons and estates of infants,

idiots and lunatics within Our territory subject to the provisions of any laws or regulations now in force.

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Law to be administered by the High Court of Judicature

14. And we do hereby ordain that with respect to the law or equity to be applied to each case coming before the

122

said High Court of Judicature, in the exercise of its extraordinary original jurisdiction, such law or equity shall, until otherwise provided, be the law

and equity which would have been applied to such case by any local court having jurisdiction therein.

15. And we do further ordain that with respect to the law or equity and rule of good conscience to be applied by the said High Court of Judicature to each

case coming before it, in the exercise of its appellate jurisdiction, such law or equity and rule of good conscience shall be the law or equity and rule

of good conscience which the court in which the proceedings in such case were originally instituted ought to have applied to such case.

Criminal Jurisdiction

16. And we do further ordain that the said High Court of Judicature shall be a Court of appeal from the criminal courts of Our territories and shall exercise

appellate jurisdiction in all criminal cases in which an appeal is allowed by law.

17. And We do further ordain that the said High Court of Judicature shall be a Court of reference and revision from the criminal courts subject to its appellate

jurisdiction, and shall have power to hear and determine all such cases referred to it by the Sessions Judges or by any other officer authorized to refer

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such cases to the High Court and to revise all such cases tried by any Officer or Court possessing criminal jurisdiction subordinate to the High Court.

18. And We do further ordain that the said High Court of Judicature shall have power to direct the transfer of any criminal case or appeal from any Court

to any other Court of equal or superior jurisdiction and also to direct the preliminary investigation or trial of any criminal case by any officer or Court

otherwise competent to investigate or try it though such case belongs, in ordinary course, to the jurisdiction of some other officer of Court.

123

Criminal Law

19. And We do hereby ordain that all persons brought for trial before the said High Court of Judicature, in the exercise of its jurisdiction as a Court

of appeal, reference or revision charged with any offence for which provision is made by Act XII of 1989 called the Ranbir Penal Code or by any Act amending

or excluding the said Act, which may have been passed prior to the publication of these presents, shall be liable to punishment under the said Act or Acts

and not otherwise.

Exercise of Jurisdiction elsewhere than at the ordinary place of sitting of the High Court

20. And We do further ordain that whenever it shall appear to the Prime Minister of Our State, subject to Our control, convenient that the jurisdiction

and power by these Our Letters Patent and by the recited Act vested in the said High Court should be exercised in any place other than the usual place

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of sitting of the said High Court or at several places by way of circuit, the proceedings in cases before the said High Court at such place or places shall

be regulated by any law relating thereto which has been or may be made by competent legislative authority.

Power of single Judge and Division Courts

21. And We do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature, in the exercise of its original

or appellate jurisdiction, may be performed by any Judge or by any Division Court thereof, appointed or constituted for such purposes, and if such Division

Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided

according to the opinion of a majority of the Judges, if there shall be a majority, but if the Judges should be equally divided, they shall state the point

upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided

124

according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

22. And We do further ordain that Our High Court shall have, as provided by Section 64 of the Jammu and Kashmir Constitution Act, 1996, exclusive superintendence

and control over all courts for the time being subject to its appellate or revisional jurisdiction and all such Courts shall be subordinate to the High

Court. And We do further ordain that the Chief Justice or a Judge of the High Court authorised by him in this behalf, shall, from time to time, visit and

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inspect the proceedings of the Courts subordinate to the High Court and shall give such directions in matters not provided for by law as may be necessary

to secure the due administration of justice.

Contempt

23. And We do further ordain that Our High Court shall be a Court of record and shall have the power to punish with fine not exceeding rupees one thousand

or with simple imprisonment for a period not exceeding six months or with both any person who is guilty of contempt in relation to itself or to any Court

subordinate to it;

Provided that the High Court shall not take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it when such contempt

is an offence punishable under the Ranbir Penal Code.

24. [Omitted (12-2-1950).]

25. And We do further ordain that the High Court shall comply with such requisitions, as may, from time to time, be made under the commands of High Highness

for records, returns and statements in such form or manner as High Highness may require.

26. And We do further ordain that the High Court may consistently with the law for the time being in force make rules in respect of the matters specified

in Section 67 of the Jammu and Kashmir Constitution Act, 1996, subject to the conditions specified in sub-section (2) of the aforesaid section.

27. And We do further ordain that appeals shall lie from the judgments, decrees or orders of the said High Court of

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125

Judicature in Civil matters to Us and shall be filed before that Board of Judicial Advisers subject to the conditions and in the manner provided by the

rules framed by the Board in accordance with Section 71 of the Jammu and Kashmir Constitution Act, 1996.

(Sd.) HARI SINGH Maharaja, G.C.S.I., G.C.I.E., K.C.V.O., LL.D.

Dated Srinagar this twenty-eighth day of August One thousand nine hundred and forty-three.

Letters patent of the High Court of Jammu&Kashmir

The term judgment under the letters patent should be construed liberally - A.I.R. 1965 J&K 118 (DB).

An order declaring that the Court has jurisdiction to try a case is a judgment within the meaning of clause 12 of the letters patent - A.I.R. 1965 J&K -

118.

An order of the trial judge in money suit that a party is an agriculturist for the purpose of the Jammu&Kashmir agriculturist Relief Act or not effects

the jurisdiction of the court is a judgment. - A.I.R. 1959 J&K - 139 (140) (DB).

Even if an order does not finally disposed of the suit protect is a 'Judgment' if at determines the rights of the parties - orders of character specified

in Section 104 and Order 43, Rule 1 C.P.C. except clause (JJ) are judgments -1995 Bombay 266, A.I.R. 1952 Nagpur 357 (F.B), A.I.R. 1942 Lah. 95, A.I.R.

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1953 S.C. 198, A.I.R. 1960 Calcutta 582, A.I.R. 1965 J&K, 118, A.I.R. 1927 Rang. 139, and A.I.R. 1969 J&K, 52 (55) (DB).

If in the an order under appeal all that the judge has said is that the additional issue be tried along with the other issues already framed in the case,

it cannot be said that he has decided any matter - A.I.R. 1968 J&K, 71.

An order made in the exercise of revisional jurisdiction is not appealable - A.I.R. 1957 J&K, 4 (DB) an order granting leave to defend under Order 37 Rule

2 C.P.C. is not a judgment - A.I.R. 1959 J&K, 139 and A.I.R. 1953 S.C., 198, A.I.R. 1926, Calcutta 842, and A.I.R. 1962 J&K, 47.

126

Order passed by a single judge in exercise of his revisional jurisdiction or his power of Superintendents under Section 104 of the constitution of J&K which

correspondence to article 227 of the Constitution of India is an order made in exercise of Supervisory jurisdiction and hence not appealable - A.I.R. 1979

J&K, 190 (192).

New point raised for the first time in Letters Patent Appeal being constitutional one allowed to be raised - A.I.R. 1967 J&K 78.

A case pending before Panchyat cannot be transferred by the High Court either under J&K Village Panchyat Act or under Section 526 Criminal Procedure Act

or under clause 18 of the Letters Patent nor under Section 104 of the Constitution of Jammu and Kashmir - A.I.R. 1965 J&K, 71.

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Difference of opinion between two judges case has to be referred to a third judge and not to a Full Bench as required under Section 62 of the J&K Constitution

Act (1996 SMT) which must be deemed to have been modified by the Letters Patent - A.I.R. 1970 J&K 159.

High Court has power of Superintendence over Rents Controller - A.I.R. 1955 J&K 29.

Order Condeming delay not a judgment - It does not affect merits of the controversy XVIII D.L.T. (1980) 394 (DB).

127

The Indian Independence Act, 1947 (10&11 Geo. VI, C. 80)

Act to make provision for the setting up in India of two independent Dominions, to substitute other provisions for certain provisions of the Government

of India Act, 1935, which apply outside those Dominions, and to provide for other matters consequential on or connected with the setting up of those Dominions.

BE IT enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows :

The new Dominions

1. (i) As from the fifteenth day of August, nineteen hundred and forty-seven, two independent Dominions shall be set up in India, to be known respectively

as India and Pakistan.

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(ii) The said Dominions are hereafter in this Act referred to as "the new Dominions," and the said fifteenth day of August is hereafter in this Act referred

to as "the appointed day."

Territories of new Dominions

2. (i) Subject to the provisions of sub-section (3) and (4) of this section, the territories of India shall be the territories under the sovereignty of

His Majesty which, immediately before the appointed day, were included in British India except the territories which sub-section (2) of this Section, are

to be the territories of Pakistan.

(ii) Subject to the provisions of sub-sections (3) and (4) of this section, the territories of Pakistan shall be— (a) the territories which on the appointed

day

128

are included in the Province of East Bengal and West Punjab, as constituted under the two following sections :

(b) the territories which, at the date of the passing of this Act, are included in the Province of Sind and the Chief Commissioner's Province of British

Baluchistan; and

(c) if, whether before or after the passing of this Act but before the appointed day, the Governor-General declares that the majority of the valid votes

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cast in the referendum which, at the date of the passing of this Act, is being or has recently been held in that behalf under his authority in the North-West

Frontier Province are in favour of representatives of that Province taking part in the Constituent Assembly of Pakistan the territories which at the date

of the passing of this Act are included in that Province.

(iii) Nothing in this section shall prevent any areas being at any time included in or excluded from either of the new Dominions, so however that—

(a) no area not forming part of the territories specified in sub-section (1) or as the case may be, sub-section (2) of this section shall be included in

either Dominion without the consent of that Dominion: and

(b) no area which forms part of the territories specified in the said sub-section (1) or, as the case may be, the said sub-section (2); or which has after

the appointed day been included in either Dominion, shall be excluded from that Dominion without the consent of that Dominion.

(iv) Without prejudice to the generality of the provisions of sub-section (3) of this section, nothing in this section shall be construed as preventing

the accession of Indian States to either of the New Dominions.

Bengal and Assam

3. (i) As from the appointed day—

129

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(a) the province of Bengal, as constituted under the Government of India Act, 1985, shall cease to exist; and

(b) there shall be constituted in lieu thereof new Provinces, to be known respectively as East Bengal and West Bengal.

(ii) If, whether, before or after the passing of this Act, but before the appointed any, the Governor-General declares that the majority of the valid votes

cast in the referendum which, at the date of the passing of this Act, is being or has recently been held in that behalf under his authority in the District

of Sylhet are in favour of that District forming part of the new Province of East Bengal, then, as from that day, a part of the Province of Assam shall,

in accordance with the provisions of subsection (3) of this Section, form part of the new Province of East Bengal.

(iii) The boundaries of the new Provinces aforesaid and, in the event mentioned in sub-section (2) of this Section, the boundaries after appointed day of

the Province of Assam, shall be such as may be determined, whether before or after the appointed day by the award of a boundary commission appointed or

to be appointed by the Governor-General in that behalf, but until the boundaries are so determined—

(a) the Bengal Districts specified in the First Schedule of this Act, together within the event mentioned in sub-section (2) of this Section, the Assam

District of Sylhet, shall be treated as the territories which are to be comprised in the new Province of East Bengal.

(b) the remainder of the territories comprised at the date of the passing of this Act in the Province of Bengal shall be treated as the territories which

are to be comprised in the new Province of West Bengal; and,

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(c) in the event mentioned in sub-section (2) of this section, the District of Sylhet shall be excluded from the Province of Assam.

130

(iv) In this section, the expression "award" means, in relation to a boundary commission, the decision of the Chairman of that commission contained in his

report to the Governor-General at the conclusion of the commission's proceedings. (a) See the Report of the Bengal Boundary Commission in the Gazette of

India, Extraordinary, dated 17-8-1947; page 1059.

The Punjab

4. (i) As from the appointed day—

(a) the Province of the Punjab, as constituted under the Government of India Act, 1935, shall cease to exist; and

(b) there shall be constituted two new Provinces to the known respectively as West Punjab and East Punjab.

(ii) The boundaries of the said new Provinces shall be such as may be determined, whether before or after the appointed day by the award of a boundary commission

appointed or to be appointed by the Governor-General in that behalf, but until the boundaries are so determined—

(a) the districts specified in the Second Schedule to this Act shall be treated as the territories to be comprised in the new Province of West Punjab, and

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(b) the remainder of the territories comprised at the date of the passing of this Act in the Province of the Punjab shall be treated as the territories

which are to be comprised in the New Province of East Punjab.

(iii) In this section, the expression "award" means, in relation to a boundary commission the decision of the Chairman of that commission contained in his

report to the Governor-General at the conclusion of the commission's proceedings, (a) See Report of the Punjab Bombay Commission in the Gazette of India,

Extraordinary, dated 17.8.1947, page 1065.

131

The Governor-General of the new Dominions

5. For each of the new Dominions, there shall be a Governor-General who shall be appointed by His majesty and shall represent His Majesty for the purposes

of the Government of the Dominion :

Provided that, unless and until provision to the contrary is made by a law of the Legislature of either of the new Dominions, the same person may be Governor-General

of both the new Dominions :

Legislation for the New Dominions

6. (i) The Legislature of each of the new Dominions shall have full-power to make laws for that Dominion, including laws having extra-territorial operation.

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(ii) No law and no provision of any law made by the Legislature of either of the new Dominions shall be void or inoperative on the ground that it is repugnant

to England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom, or any order, rule or regulation made under

any such Act, and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far

as it is part of the law of the Dominion.

(iii) The Governor-General of each of the new Dominions shall have full power to assent in His Majesty's name to any law of the Legislature of that Dominion

and so much of any Act as relates to the disallowance of laws by His Majesty or the reservation of laws for the signification of His Majesty's pleasure

thereon or the suspension of the operation of laws until the signification of His Majesty's pleasure thereon shall not apply to laws of the Legislature

of either of the new Dominions.

(iv) No Act of Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to either of the new Dominions

132

as part of the law of that Dominion unless it is extended thereto by a law of the Legislature of the Dominion.

(v) No Order in Council made on or after the appointed day under any Act passed before the appointed day, and no order, rule or other instrument made on

or after the appointed day under any such Act by any United Kingdom Minister or other authority, shall extend, or be deemed to extend, to either of the

new Dominions as part of the law of that Dominion.

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(vi) The power referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the Legislature of the

Dominion.

Consequences of the setting up of the new Dominions

7. (i) As from the appointed day—

(a) His Majesty's Government in the United Kingdom have no responsibility as respects the Government of any of the territories which immediately before

that day, were included in British India.

(b) the suzeraintly of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act

between His Majesty and the rulers of Indian States all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and

all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance

or otherwise, and

(c) there lapse also any treaties or agreements in force at the date of the passing of this Act-between His Majesty and any persons having authority in

the tribal areas, any obligations

133

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of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights, authority or jurisdiction exercisable

at that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance or otherwise: Provided that, notwithstanding anything

in paragraph (b) or paragraph (c) of this sub section, effect shall, as nearly as may be continued to the given to the provisions of any such agreement

as is therein referred to which relate to customs, transit and communications, posts and telegraphs, or other like matters, until the provisions in question

are denounced by the ruler of the Indian State or person having authority in the tribal areas on the one hand, or by the Dominion or Province or other

part thereof concerned on the other hand, or are superseded by subsequent agreements.

(ii) The assent of the Parliament of the United Kingdom is hereby given to the omission from the Royal Style and Titles of the words "Indian Imperator"

and the words "Emperor of India" and to the issue by His Majesty for that purpose of His Royal Proclamation on under the Great Seal of the Realm.

Temporary provision as to Govt. of each of the new Dominions

8. In the case of each of the new Dominions the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the constitution

of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion, and reference in this Act to the Legislature of the

Dominion shall be construed accordingly.

(ii) Except in so far as other provision in made by or in accordance with a law made by the Constituent Assembly of the Dominion under Subsection (1) of

this section, each of the new

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134

Dominions and all provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the

provisions of that Act, and of the Orders in Council, rules and other instruments made there under, shall, so far as applicable, and subject to any express

provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor-General under the

next succeeding section, have effect accordingly : Provided that—

(a) the said provisions shall apply separately in relation to each of the Dominions and nothing in this sub-section shall be construed as continuing on

or after the appointed day any Central Government or Legislature common to both the new Dominions;

(b) nothing in this sub-section shall be construed as continuing on or after the appointed day any form of control by His Majesty's Govt. in the United

Kingdom over the affairs of the new Dominions or of any Province or other part thereof;

(c) so much of the said provisions as requires the Governor-General or any Governor to act in his discretion or exercise his individual judgment as respects

any matter shall cease to have effect as from the appointed day;

(d) as from the appointed day, no Provincial Bill shall be reserved under the Government of India Act, 1935 for the signification of His Majesty's pleasure,

and no Provincial Act shall be disallowed by His Majesty there under; and

(e) the powers of the Federal Legislature or Indian Legislature under that Act, as in force in relation to each Dominion, shall, in the first instance,

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be exercisable by the Constituent Assembly of the Dominion, in addition to the powers exercisable by the Assembly under sub-section (1) of this section.

135

(iii) Any provision of the Government of India Act, 1935, which is applied to either of the new Dominions by sub section (2) of this section and the orders

therein referred to, operates to limit the power of the Legislature of that Dominion shall, unless and until other provision is made by or in accordance

with a law made by the Constituent Assembly of the Dominion in accordance with the provisions of sub-section (1) of this section, have the like effect

as a law of the Legislature of the Dominion limiting for future the powers of that Legislature.

Orders for bringing this Act into force

9. (i) The Governor-General shall by order make such provisions as appears to him to be necessary or expedient-

(a) for bringing the provisions of this Act into effective operation;

(b) for dividing between the new Dominions, and between the new Provinces, to be constituted under this Act, the powers, rights, property, duties and liabilities

of the Government-General in Council or, as the case may be, of the relevant Provinces which under this Act, are to cease to exist;

(c) for making omissions from, additions to, and adaptations and modifications of, the Government of India Act, 1935, and the Orders in Council, rules and

other instruments made there under, in their application to the separate new Dominions;

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(d) for removing difficulties arising in connection with the transition of the provisions of this Act;

(e) for authorising the carrying on the business of the Governor-General in Council between the passing of this Act and the appointed day otherwise than

in accordance with the provisions

136

in that behalf of the Ninth Schedule to the Government of India Act, 1935;

(f) for enabling agreements to be entered into, and other acts done, on behalf of either of the new Dominions before the appointed day;

(g) for authorising the continued carrying on for the time being on behalf of the new Dominions, or on behalf of any two or more of the said new Provinces,

of services and activities previously carried on behalf of British India as a whole or on behalf of British India as a whole or on behalf of the former

Provinces which those new Provinces represent;

(h) for regulating the monetary system and any matters pertaining to the Reserve Bank of India; and

(i) so far as it appears necessary or expedient in connection with any of the matters aforesaid, for varying the constitution, powers or jurisdiction of

any legislature court or other authority in the new Dominions and creating new legislatures, courts or other authorities therein.

(ii) the powers conferred by this section on the Governor-General shall, in relation to their respective Provinces, be exercisable also by the Governors

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of the Provinces which, under this Act, are to cease to exist; and those powers shall, for the purposes of the Govt. of India Act 1935, be deemed to be

matters as respects which the Governors are under that Act, to exercise their individual judgement.

(iii) This section shall be deemed to have had effect as from the third day of June, nineteen hundred and fortyseven and any order of the Governor-General

or any Governor made on or after that date as to any matter shall have effect accordingly, and any order made under this section may be made so as to be

retrospective to any date not earlier than the said third day of June : Provided that no person shall be deemed to the

137

guilty of an offence by reason of so much of any such order as makes any provision thereof retrospective to any date before the making thereof, (iv) Any

order made under this section, whether before or after the appointed day, shall have effect—

(a) upto the appointed day, in British India;

(b) on and after the appointed day, in the new Dominion or dominions concerned; and

(c) outside British India, or, as the case may be, outside the new Dominion or Dominions concerned, to such extent, whether before, on or after the appointed

day, as a law of the Legislature of the Dominion or Dominion concerned would have on or after the appointed day;

(v) No order shall be made under this section, by the Governor of any Province, after the thirty-first day of March, nineteen hundred and forty-eight, or

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such earlier date as may be determined, in the case of either Dominion, by any law of the Legislature of that Dominion.

(vi) If it appears that a part of the Province of Assam is on the appointed day, to become part of the new Province of East Bengal, the preceding provisions

of this section shall have effect as if, under this Act the Province of Assam was to cease to exist on the appointed day and be reconstituted on that day

as new Province.

Secretary of State's services, etc.

10 (i) The provisions of this Act, keeping in force of the Govt. of India Act, 1935 shall not continue in force the provisions of that Act relating to appointments

to the civil services of, and civil posts under the (Crown in India by the Secretary of State or the provisions of that Act relating to the reservation

of posts, (ii) Every persons who—

(a) having been appointed by the Secretary of

138

State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Govt. of either

of the new Dominions or of any province or part thereof; or (b) having been appointed by His Majesty before the appointed day to be a Judge of the Federal.

Court or any Court which is a High Court within the meaning of the Govt. of India Act, 1935 continues on and after the appointed day to serve as a judge

in either of the new Dominions, shall be entitled to receive from the Governments of the Dominions and Provinces of parts which he is from time to rime

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serving or, as the case may be, which are served by the courts in which he is from time to time a judge the same conditions of service as respects the

tenure of his office, or rights as similar, thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed

day. (iii) Nothing in this Act shall be construed as enabling the right and liabilities of any person with respect to the family pension funds vested in

Commissioners under section two hundred and seventy-three of the Govt. of India Act, 1935 to be governed otherwise than by Orders in Council made (whether

before or after the passing of this Act or the appointed day) by a Secretary of State or such other Minister of the Crown as may be designated in that

behalf by Order in Council under the Ministers of the Crown (Transfer of Functions) Act, 1946.

Indian armed Forces

11. (i) The orders to be made by the Governor-General under the preceding provisions of this Act shall make provision for the division of the Indian armed

forces of His Majesty between the new Dominions, and for the command and governance of those forces until the division is completed.

139

(ii) As from the appointed day, while any member of His Majesty's forces, other than His Majesty's Indian forces, is attached to or serving with any of

His Majesty's Indian forces—

(a) he shall, subject to any provision to the contrary made by a law of the Legislature of the Dominion or Dominions concerned or by any order of the Governor-General

under the preceding provisions of this Act, have, in relation to the Indian forces in question, the powers of command and punishment appropriate to his

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rank and functions; but

(b) nothing in any enactment in force at the date of the passing of this Act shall render him subject in any way to the law governing the Indian forces

in question.

British forces in India

12. (i) Nothing in this Act affects the jurisdiction or authority of His Majesty's Government in the United Kingdom, or of the Admiralty, the Army Council,

other Air Council or of any other United Kingdom authority, in relation of any of His Majesty's forces which may, on or after the appointed day, be in

either of the new Dominions or elsewhere in the territories which, before the appointed day, were included in India not being Indian forces. (ii) In its

application in relation to His Majesty's military forces, other than Indian forces, the Army Act shall have effect on or after the appointed day—

(a) as if His Majesty's Indian forces were not included in the • expressions 'the forces', 'His Majesty's forces' and 'the regular forces;' and

(b) subject to the further modifications specified in Parts I and II of the Third Schedule to this Act.

(iii) Subject to the provisions of sub-section (2) of this section, and to any provisions of any law of the Legislature of the Dominion concerned, all civil

authorities in the new Dominions, and, subject

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as aforesaid and subject also to the provisions of the last preceding section, all service authorities in the new Dominions, shall, in those Dominions and

in the other territories which were included in India before the appointed day, perform in relation of His Majesty's military forces, not being Indian

forces, the same functions as were, before the appointed day, performed by them, or by the authorities corresponding to them, whether by virtue of the

Army Act or otherwise, and the matters for which provision is to be made by orders of the Governor-General under the preceding provisions of this Act shall

include the facilities of the withdrawal from the new Dominions and other territories aforesaid of His Majesty's military forces, not being Indian forces.

(iv) The provisions of sub-section (2) and (3) of this section apply in relation to the air forces of His Majesty, not being Indian air forces, as they

apply in relation of His Majesty's military forces, subject, however, to the necessary adaptations, and in particular, as if :

(a) for the references to the Arms Act there were substituted references to the Air Forces Act: and

(b) for references to Part n of the Third Schedule in this Act there were substituted a reference to Part III of that schedule.

Naval Forces

13. (i) In the application of the Naval Discipline Act to His Majesty's Naval Forces, references to His Majesty's navy and His Majesty's ships shall not,

as from the appointed day apply to Indian naval Indian forces.

(ii) In its application in relation to His Majesty's military forces, other than Indian forces, the Army Act shall have effect on or after the appointed

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day—

(a) as if His Majesty's Indian forces were not included in the expressions 'the forces' 'His Majesty's

141

forces' and 'the regular forces; and (b) subject to the further modifications specified in Parts I and II of the Third Schedule to this Act.

(iii) Subject to the provisions of sub-section (2) of this section, and to any provisions of any law of the Legislature of the Dominion concerned, all civil

authorities in the new Dominions, and, subject as aforesaid and subject also to the provisions of the last preceding section, all service authorities in

the new Dominions, shall, in those Dominions and in the other territories which were included in India before the appointed day, perform in relation to

His Majesty's military forces, not being Indian forces, the same functions as were, before the appointed day, performed by them, or by the authorities

corresponding to them, whether by virtue of the Army Act or otherwise, and the matters for which provision is to be made by orders of the Governor-General

under the preceding provisions of this Act shall include the facilitating of the withdrawal from the new Dominions and other territories aforesaid of His

Majesty's military forces, not being Indian forces.

(iv) The provisions of sub-sections (2) and (3) of this section apply in relation to the air forces of His Majesty, not being Indian air forces, as they

apply in relation to His Majesty's military forces, subject, however, to the necessary adaptations, and in particular, as if—

(a) for the reference to the Army Act there were substituted references to the Air Forces Act; and

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(b) for reference to Part II of the Third Schedule in this Act their were substituted a reference to Part III of that schedule.

Naval Forces

13. (i) In the application of the Naval Discipline Act to His Majesty's Naval Forces, references to His Majesty's navy and His Majesty's ships shall not,

142

as from the appointed day to apply Indian naval forces, references to His Majesty's navy and His Majesty's ship shall, as from the appointed day be deemed

to be, and to be only, references to His Majesty's Indian navy and the ships thereof.

(ii) In section ninety B of the Naval Discipline Act (which in certain cases, subjects officers and men of the Royal Navy and Royal Marines to the law and

customs of the ships and naval forces of other parts of His Majesty's dominions) the words "or the India" shall be repealed as from the appointed day,

wherever those words occur.

Provisions as to the Secretary of State and the Auditor of Indian Home Accounts

14. (i) A Secretary of State, or such other Minister of the Crown, as may be designated in that behalf by Order in council under the Ministers of the Crown

(Transfer of Functions) Act, 1946, is hereby authorized to continue for the time being the performance, on behalf of whatever government or governments

may be concerned, of functions as to making of payments and other matters similar to the functions which, up to the appointed day, the Secretary of State

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was performing on behalf of governments constituted or continued under the Government of India Act, 1935 as respects the contracting of sterling loans.

(ii) As from the appointed day, there shall not be any such advisers of the Secretary of State as are provided for by section two hundred and seventy-eight

of the Government of India Act, 1935, and that section, and any provisions of that Act which require the Secretary of State to obtain the concurrence of

his advisers, are hereby repealed as from that day.

(iii) The Auditor of Indian Home Accounts in hereby authorised to continue for the time being to exercise his functions as respects the accounts of the

Secretary of State or any such other Minister of the Crown as is mentioned in sub section (1) of this

143

section, both in respect of activities before, and in respect of activities after, the appointed day, in the same manner, as nearly as may be as he would

have been done if this Act had not passed.

Legal Proceedings

15. (i) Notwithstanding anything contained in this Act, and in particular, notwithstanding any of the provisions of the last proceeding section, any provision

of any enactment which, but for the passing of this Act, would authorize legal preceding to be taken, in India or elsewhere by or against the Secretary

of State in respect of any rights or liability of Indian or any past of India cease to have effect on the appointed day, and legal proceedings pending

by virtue of any such provision on the appointed day shall, by virtue of this Act, abate on the appointed day, so far as the Secretary of State is concerned.

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(ii) Subject to the provisions of this sub-section, any legal proceedings which, but for the passing of this Act, could have been brought by or against

that Secretary of State in respect of any right or liability of India, or any part of India shall instead be brought.

(a) in the case of proceedings, in the United Kingdom, by or against the High Commissioner;

(b) in the case of other proceedings by or against such person as may be designated by order of the Governor-General under the proceeding provisions of

its Act or otherwise by the law of the new Dominion concerned; and any legal proceedings by or against the Secretary of State in respect of any such right

or liability as aforesaid which are pending immediately before the appointed day shall be continued by or against the High Commissioner or as the case

may be against the person designated as aforesaid:

Provided that anytime after the appointed day, the right conferred by this sub-section to bring

144

or continue proceedings may, whether the proceedings are by or against, the High Commissioner or person designated as aforesaid, be withdrawn by a law of

the Legislature of either of the new Dominions so far as that Dominion is concerned, and any such law may operate as respects proceedings pending at the

date of passing of the law.

(iii) In this section, the expression "the High Commissioner" means, in relation to each of the new Dominions, any such officer as may for the time being

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be authorised to perform in the United Kingdom, in relation to that Dominion, functions similar to those performed before the appointed day, in relation

to the Governor-General in Council, by the High Commissioner referred to in section three hundred and two of the Govt. of India Act, 1935; and any legal

proceedings which immediately before the appointed day, are the subject of an appeal to His Majesty in Council, or of a petition for special leave to His

Majesty in Council, shall be treated for the purposes of thus section as legal proceedings pending in the United Kingdom.

Aden

16. (i) Sub Sections (2) to (4) of section two hundred and eighty-eight of the Government of India Act, 1935 (which on His Majesty power to make by Order

in Council provision for the Government of Aden) shall cease to have effect and the British Settlements Acts, 1887 and 1945 (which authorise His Majesty

to make laws and establish institutions for British Settlements as defined in those Acts) shall apply in relation to Aden as if it were a British Settlement

as so defined.

(ii) Notwithstanding the repeal of the said sub-sections (2) to (4), the Orders in Council in force thereafter at the date of the passing of this Act shall

continue in force, but the said Orders in Council, any other Orders in Council made as aforesaid may be repealed, revoked or amended under the powers

145

of the British Settlements Acts, 1887 and 1945.

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(iii) Unless and until provision to the country is made as respects Aden under the power of the British Settlements Acts, 1887 and 1945, or as respects

the new Dominions in question, by a law of the Legislature of that Dominion, the Provisions of the said Orders in Council and enactments relating to appeal

from any Courts in Aden to any Courts which will after the appointed day, in either of the new Dominions, shall continue in force in their application

both to Aden and to the Dominion in question, and the last mentioned Courts shall exercise their jurisdiction accordingly.

Divorce Jurisdiction

17. (i) No Court in either of the new Dominions shall, by virtue of the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940b, have jurisdiction

in or in relation to any proceedings for a decree for the dissolution of a marriage unless those proceedings were instituted before the appointed day,

but, save as aforesaid and subject to any provision to the contrary which may hereafter be made by any Act of the Parliament of the United Kingdom or by

any law of the Legislature of the new Dominion concerned, all Courts in the new Dominions shall have the same jurisdiction under the said Acts as they

would have had if this Act had not been passed.

(ii) Any rules made on or after the appointed day under sub-section (4) of section one of the Indian and Colonial Divorce Jurisdiction Act, 1926, for a

Court in either of the new Dominions, shall, instead of being made by the Secretary of State with the concurrence of the Lord Chancellor be made by such

authority as may be determined by the law of the Dominion concerned, and so much of the said sub-section and of any rules in force there under immediately

before the appointed day as required the approval of the Lord Chancellor to

146

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the nomination for any purpose of any Judges of any such Court shall cease to have effect.

(iii) The reference in sub-section (1) of this section to proceedings for a decree for the dissolution of a marriage include references to proceedings for

such a decree of presumption of death and dissolution of a marriage as is authorised by section eight of the Matrimonial Causes Act 1937.

(iv) Nothing in this section affects any court outside the new Dominions, and the power conferred by section two of the Indian and Colonial Divorce Jurisdiction

Act, 1926, to apply certain provisions of that Act to other parts of His Majesty's dominions as they apply to India shall be deemed to empower to apply

those provisions as they would have applied to India if this Act had not been passed.

(a) (1926) 16 and 17 Geo. V.C. 40.

(b) (1949) 3 and 4 Gen. V.C. 35.

Provisions as to Existing Laws, etc.

18. (1) In so far as any Act of Parliament, Order in Council, order rule, regulation or other instrument passed or made before the appointed day operates

otherwise than as part of the law of British India or the new Dominions, references therein to India or British India, however, worded and whether by name

or not, shall, in so far as the context permits and except so far as Parliament may hereafter otherwise provide, be construed as, or as including, references

to the new Dominions, taken together, or taken separately, according as the circumstances and subject-matter may require :

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Provided that nothing in this sub-section shall be construed as continuing in operation may provision in so far as the continuance thereof as adapted by

this Sub-section is inconsistent with any of the provisions of this Act other than this section.

(2) Subject to the provisions of sub section (1) of this section and to any other express provision of this Act the Orders-in-Council made under sub section

(5) of section three

147

hundred and eleven of the Government of India Act, 1935 for adapting and modifying Acts of Parliament shall, except so far as Parliament may hereafter otherwise

provide, continue in force in relation to all Acts in so far as they operate otherwise than as part of the law of British India or the new Dominions.

(3) Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof existing immediately before the appointed

day shall, so far as applicable and with the necessary adaptations continue as the law of each of the new Dominions and the several parts there of until

other provision is made by laws of the Legislature of the Dominion in question or by any the Legislature or other authority having power in that behalf.

(4) As from the appointed day, so much of any enactment as requires the approval of His Majesty in Council to any rule of court shall not apply to any court

in either of the new Dominions.

(a) See the India (Adaptation of Existing Indian Laws) Order, 1947 in the Gazette of India, Extraordinary, dated 14.8.1947, page 904. This order is printed,

post, as an Appendix to this Act.

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19. (1) References in this Act to the Governor-General shall; in relation to any order to be made or other act done on or after the appointed day construed

— Interpretation, etc.

(a) where the order or other Act concerns one only of the new Dominions, as references to the Governor-General of that Dominion;

(b) where the order or other Act concerns both of the new Dominions and the same person is the Governor-General of both those Dominions, as references to

that person; and

(c) in any other case, as references to the Governor-General of the new Dominions, acting jointly.

(2) References in this Act to the Governor-General shall, in relation to any order made or other act done before the appointed day, be construed as references

to the Governor-General to be construed as references to the Governor-General

148

in Council shall not apply to references to the Governor-General in this act.

(3) References in this Act to the Constituent Assembly of a Dominion shall be construed as references :

(a) in relation to India, to the Constituent Assembly, the first sitting where of was held on the ninth day of December, nineteen hundred and forty-six,

modified.

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(i) by the exclusion of the members representing Bengal, the Punjab, Sind and British Baluchistan; and

(ii) should it appear that the North-West Frontier Province will from part of Pakistan, by the exclusion of the members representing that Province; and

(iii) by the inclusion of members representing West Bengal and East Punjab; and

(iv) should it appear that, on the appointed day, a part of the Province of Assam is to form part of the new Province of East Bengal, by the exclusion of

the members there to force representing the Province of Assam and the inclusion of members chosen to represent the remainder of that Province;

(b) In relation to Pakistan, to the Assembly set up or about to be set up at the date of passing of this Act under the authority of the Governor-General

as the Constituent Assembly for Pakistan.

Provided that nothing in this sub-section shall be construed as affecting the extent to which representatives of the Indian States take part in either of

the said Assembles, or as preventing the filling of casual vacancies in the said Assemblies, or as preventing the participation in either of the said Assemblies

in accordance with such tribal areas on the borders of the Dominion for which that Assembly sits, and the powers of the said Assemblies shall extend, and

be deemed always to have extended, to the making of provision for the matters specified in this provision.

(4) In this Act, except so far as the context otherwise requires :

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References to the Government of India Act, 1935, include reference to any enactments amending or supplementing that Act, and, in particular references to

the India General Government and Legislature) Act, 1946; "India", where the reference is to a state of affairs existing before the appointed day or which

would have existed, but for the passing of this Act, has the meaning assigned to it by section three hundred and eleven of the Government of India Act,

1935. "Indian forces" includes all His Majesty's Indian forces existing before the appointed day and also any forces of either of the new Dominions;

"Pension" means, in relation to any person, a pension, whether contributory or not, of any kind whatever payable to or in respect of that person, and includes

retired pay so payable a gratuity so payable and any sum or sums So/ payable by way of the return, with or without interest there on or other additions

thereto, of subscriptions to a provident fund :

"Province" means a Governor's Province; "remuneration" includes leave pay, allowances and the cost of any privileges or facilities provided in kind.

(5) Any power conferred by this Act to make any order includes power to revoke or vary any order previously made in the exercise of that power.

Short Title

20. This Act may be cited as the Indian Independence Act, 1947.

SCHEDULES FIRST SCHEDULE

(Section 3)

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BENGAL DISTRICTS PROVISIONALLY INCLUDED IN THE NEW PROVINCE OF EAST BENGAL

In the Chittagong Division, the districts of Chittagong, Noakhali and Tippera.

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In the Dacca Division, the districts of Bakarganj, Dacca, Faridpur and Mymensingh.

In the Presidency Division, the districts of Jessore, Murshidabad and Nadia.

In the Rajshahi Division, the district of Bogra, Dinapur, Malda, Pabna, Rajshahi and Rangpur.

SECOND SCHEDULE

(Section 4)

DISTRICTS PROVISIONALLY INCLUDED IN THE NEW PROVINCE OF WEST PUNJAB

In the Lahore Division, the districts of Gujranwala, Gurdaspur, Lahore Scheikhupura and Sialkot.

In the Rawalpindi Division, the districts of Attock, Gujarat, Jhelum, Mianwali, Rawalpindi and Shahpur.

In the Multan Division, the districts of Dera Ghazi Khan, Jhang Lyallpur, Montgomery, Multan and Muzaffargarh.

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THIRD SCHEDULE

(Section 12)

MODIFICATIONS OF ARMY ACT AND AIR FORCE ACT IN RELATION TO BRITISH FORCES

PART I

Modifications of Army Act applicable also to Air Force Act

1. The provision to section forty-one (which limits the jurisdiction of courts-martial shall not apply to offenses committed in either of the new Dominions

or in any of the other territories which were included in India before the appointed day.

2. In section forty-three (which relates to complaints, the words 'with the approval of the Governor-General of India in Council' shall be omitted.

151

3. In sub-sections (8) and (9) of section fifty-four (which amongst other things, require certain sentences to be confirmed by the Governor-General in Council)

the words "India or", the words "by the Governor-General, or, as the case may be "and the words "India by the Governor General, or, if he has been tried"

shall be omitted.

4. In sub-section (3) of section seventy-three (which provides for the nomination of officers with power to dispense with courts-martial for desertion and

fraudulent enlistment the words "with the approval of the Governor-General" shall be omitted.

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5. The powers conferred by sub section (5) of section one hundred and thirty (which provides for the removal of insane persons) shall not be exercised except

with the consent of the officer commanding the forces in the new Dominions.

6. In sub section (2) of section one hundred and thirty-two (which relates to rules regulating service prisons and detention barracks) the words "and in

India for the Governor-General" and the words, "the Governor General" shall be omitted except as respects rules made before the appointed day.

7. In the cases specified in sub section (1) of section one hundred and thirty-four, inquests shall be held in all cases in accordance with the provisions

of sub section (3) of that section.

8. In section one hundred and thirty-six (which relates to deduction from pay), in sub section (1) the words "India or" and the words "being in the case

of India a law of the Indian Legislature", and the whole of sub section (2), shall be omitted.

9. In paragraph (4) of section one hundred and thirty-seven (which relates to penal stoppages from the ordinary pay of officers), the words "or in the case

of officers serving in India the Governor-General" the shall be omitted.

10. In paragraph (12) of section one hundred and seventy-five and paragraph (11) of section one hundred and seventy-six (which apply the Act to certain

members of His Majesty's Indian Forces and to certain other persons) the word "India" shall be omitted wherever they occur.

152

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11. In sub section (1) of section one hundred and eighty (which provides for the punishment for misconduct by civilians in relation to courts-martial) the

words "India or" shall be omitted wherever they occur.

12. In the provisions of section one hundred and eighty-three relating to the reduction in rank of non-commissioned officers, the words, "with the approval

of the Governor-General" shall be omitted in both places where they occur.

PART II

Modifications of Army Act

Section 184B (which regulates relations with the Indian Air Force) shall be omitted.

PART III

Modifications of Air Force Act

1. In section 179D (which relates to the attachment of officers and airmen to Indian and Burma Air Forces), the words "by the Air Council and the Governor-General

of India, or as the case may be," and the words "India or", wherever, those words occur, shall be omitted.

2. In section 184B (which regulates relation with Indian and Burma Air Forces) the words "India or" and the words "by the Air Council and the Governor-General

of India, or, as the case may be," shall be omitted.

3. Sub-paragraph (c) of paragraph (4) of section one hundred and ninety (which provides that officers of His Majesty's Indian Force are to be officers within

the meaning of the Act shall be omitted.

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(NOTE : The following provisions are given as an Appendix to the Indian Independence Act 1947)

153

APPENDIX

[THE INDIA (ADAPTATION OF EXISTING INDIAN LAWS) ORDER, 1947]

WHEREAS sub-section (3) of section 18 of the Independence Act, 1947 (hereafter in the recitals to this Order referred to as "the said Act") provides that

save as otherwise expressly provided in the said Act, the law of British India and of the several parts thereof existing immediately before the appointed

day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof, until

other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf.

AND WHEREAS sub-section (1) of section 9 of the said Act, provides that the Governor-General shall by order make such provision as appears to him to be

necessary or expedient for bringing the provisions of the said Act into effective operation and for removing difficulties in connection with the transition

to the provisions of the said Act.

NOW THEREFORE in exercise of the powers conferred by the said Act, the Governor-General is pleased to make the following Order :

1. (i) This Order may be cited as the India (Adaptation of Existing Indian Laws) Order, 1947. (ii) It shall come into force on the fifteenth day of August.

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2. (i) In this Order.

"appointed day" means the fifteenth day of August, 1947, "existing Indian Law" means any Act, Ordinance, Regulation, rule, order or bye-law which immediately

before the appointed day has the force of law in the whole or any part of the territories which as from that day form the territories of the Dominion of

India, but does not include any Act of Parliament or any Order in Council, rule or other instrument made under an Act of Parliament, or the General Clause,

Act, 1897.

154

(ii) The General Clauses Act, 1897, applies for interpretation of this Order as it applies for the interpretation of a Central Act.

3. As from the appointed day, all existing Indian laws shall, until repealed or altered or amended by a competent Legislature or other competent authority

in their application to the Dominion of India and any part of parts thereof be subject to the adaptations directed in this order.

4. (i) Where an existing Indian Law contains a provision defining the territories to which the law extends or a provision referring to the territories which

are within the scope of that provision, that provision shall be so adapted to include any territories which on the appointed day are not to form part of

the territories of the Dominion of India.

(ii) Without prejudice to the general effect of the preceding paragraph, references in any existing Indian law to "the whole of British India" (Or "British

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India") to "Bengal" and to "the Punjab" shall, except where the reference occurs in a title or preamble or any citation or description of an Act. Ordinance

or Regulation and except where the context otherwise requires, be replaced by references to "all the Province of India" to "West Bengal" and to "East Punjab",

respectively.

5. Any reference in an existing Indian Law to a High Court which as from the appointed day ceases to be a High Court for any part of the Dominion of India

shall.

(a) if the reference be to the High Court which as from the appointed day be a reference to the High Court of East Punjab, and

(b) in any other case, be omitted.

6. Any words in an existing Indian law signifying that the Governor-General or Governor is to act in his discretion or to exercise his individual judgment

shall be omitted.

7. Any reference in an existing Indian law to the exercise of the functions of the Crown in its relation with Indian States (including any provision the

operation of which depends on the exercise of such function shall be omitted,

155

and references in any such law to the Crown Representative shall be omitted or construed as references to the Central Government as the context may require.

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8. Any reference in an existing Indian law to the Indian Legislature or to a Chamber or the Chambers thereof shall be construed as a reference to the Central

Legislature.

9. (1) Any tribunal, authority, officer or official body constituted or appointed before the commencement of this Order under an existing Indian law for,

or with jurisdiction over, the whole of British India shall, as from the appointed day, be deemed to have been constituted or appointed for or with jurisdiction

over, the whole of the Dominion of India and any reference in an existing Indian law to any such tribunal, authority, office or official body as aforesaid

shall be construed accordingly.

(2) Any reference in an existing Indian law to a tribunal, authority, officer or official body whose jurisdiction or authority immediately before the appointed

day extends.

(a) to the whole of the Province of Bengal or over parts of that Province which on the said day fall partly within the Province of East Bengal and partly

within the Province of West Bengal, or

(b) to the whole of the Province of the Punjab, or Province which on the said day fall partly within the Province of East Punjab and partly within the Province

of West Punjab, or

(c) to the whole of the Province of Assam or over parts of that Province which on the said day fall partly within the Province of East Bengal and partly

within the Province Assam and partly within the provinces of East Bengal. Shall be construed as references to such tribunal, authority, officer or official

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body as the appropriate Government may by notification in the official Gazette constitute or appoint in that behalf, and any such direction may be given

to have effect from the appointed day :

156

Provided that nothing in this paragraph shall apply to any tribunal, authority, officer or official body to which or to whom the provisions of paragraph

(1) of this Article apply.

(3) For the purpose of sub-paragraph (2) the expression "appropriate Government" means, as respects a law relating to a matter enumerated in List I of the

seventh Schedule to the Government of India Act, 1935, the Central Govt. and as respects any other law, the Provincial Govt. of West Bengal, East Punjab

or Assam, as the case may be.

10. Any Court, tribunal or authority required or empowered to enforce an existing Indian law shall, notwithstanding that this Order makes no provision or

insufficient provision for the adaptation of the law for the purpose of rendering it consistent with the provisions of the Indian Independence Act, 1947,

and of the Government of Indian Act, 1935, as applicable tc the Dominion of India, construe the law with all such adaptations as are necessary for the

said purpose :

Provided that if any question arises regarding the adaptations with which such law should be construed for the said purpose, the question shall be referred

to the Central Govt. if the law relates to a matter enumerated in List I or List III in the Seventh Schedule to the Government of India Act, 1935, and

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to the Provincial Govt. in any other case, and the decision of that Government on any such reference shall be final.

11. The General Clauses Act, 1987, shall in its application to the Dominion of India, until repealed or altered or amended by the Central Legislature, be

subject to the adaptations specified in the Schedule to this Order.

12. The provisions of this Order shall not render invalid anything duly done before the appointed day under an existing Indian Law, and anything so done

for British India or for parts thereof including territories thereafter included in the Dominion of India shall, as from the appointed day and until altered,

varied or undone, have effect as if it had been done after the appointed day for the whole of the Dominion of India or as the case may be, for such territories

thereof as aforesaid, by a competent authority and in accordance with the provisions then applicable to the case.

13. If by order under Section 9 of the Indian Independence Act, 1947, provision is made for authority the continued

157

carrying on for the time being on behalf of the new Dominions or on behalf of any two or more of the Province therein referred to as the said new Provinces

or services or activities previously carried on under the authority of an existing Indian law of behalf of British India as a whole or on behalf of the

former Provinces which those new Provinces represent, then, notwithstanding anything herein contained, such law shall, as from the appointed day, or where

the order under the said Section 9 is made after the appointed day, as from the date of the making of the order, have effect in its application to the

Dominion of India according to the tenor of that order.

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158

THE INDIA (PROVISIONAL CONSTITUTION) ORDER, 1947

(As amended by the Indian Provisional Constitution and Provincial Legislature (Amendment) Order, 1947 and the Indian Provisional Constitution (Second Amendment)

Order, 1947).

WHEREAS by sub-section (2) of Section 8 of the Indian Independence Act, 1947 (whereafter in the recitals to this Order referred to as the said Act), it

is provided that except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under sub-section

(1) of the said section, each of the new Dominion under sub-section (1) of the said section, each of the new Dominions and all Provinces and other parts

thereof shall be governed as nearly as may be in accordance with the provisions of the Government of India Act, 1935, and that the provisions of that Act

shall, so far as applicable and subject to any express provisions of the said Act and with such omissions, additions, adaptations and modifications as

may be specified in orders of the Governor-General under the next succeeding section of the said Act have effect accordingly;

AND WHEREAS by paragraph (c) of sub-section (1) of Section 9 of the said Act it is provided that the Governor-General shall by order make such provision

as appears to him to be necessary or expedient for making omissions from additions to, and adaptations and modifications of the Government of India Act,

1935, in its application to the separate new Dominions;

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AND WHEREAS by sub-section (4) of Section 19 of the said Act it is provided that in the said Act, except so far as the context otherwise requires, references

to the Government of India Act, 1935, include references to any enactment amending or supplementing that Act and in particular references to the Indian

(Central Government and Legislature) Act, 1946;

Now therefore in exercise of the powers conferred by the said provisions of the said Act, the Governor-General

159

is pleased to make the following Order :

1. (i) This Order may be cited as the India (Provisional Constitution) Order, 1947.

(ii) It shall come into force on the fifteenth day of August, 1947, which day is hereinafter referred to as "the appointed day".

2. (i) In this Order "India" means the Dominion of India.

(ii) Whereas a provision of the Government of India Act, 1935, has been amended before the appointed day, a reference to that provision in the schedule

to this Order shall be read as referring to the provision as in force immediately before the appointed day.

(iii) The Interpretation Act, 1889, applies for the interpretation of this Order as it applies for the interpretation of an Act of Parliament.

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3. (i) As from the appointed day, the Government of India Act, 1935, including the provision of that Act which have not come into force before the appointed

day, and the India (Central Government and Legislature) Act, 1946, shall, until other provision is made by or in accordance with a law made by the Constituent

Assembly of India, apply to India with the omission, additions, adaptations and modifications directed in the following provisions of this paragraph and

in the Schedule to this Order.

(ii) The following expressions shall be omitted wherever they occur, namely, "In his discretion", "acting in his discretion", and "exercising his individual

judgement".

(iii) For each expression specified in the first column of the following Table, wherever that expression occurs there shall be substituted the expression

specified in the corresponding entry in the second column of the Table.

160 TABLE

existing Indian law ... ... existing law.

existing Indian act ... ... existing law.

Federation ... ... Dominion.

Federal Government ... ... Dominion law.

Federal Legislature ... ... Dominion

Legislature.

Federated ... ... Acceding.

a Federated ... ... an Acceding.

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4. Where the Schedule to this Order requires that in any specified provision certain words shall be substituted for certain other words or that certain

words shall be omitted, that substitution or omission, as the case may be, shall, unless otherwise expressly provided, be made wherever the words referred

to appear in that provision.

5. Where any instrument is in force under any provision of the Government of India Act, 1935, immediately before the appointed day, and that provision remains

in force, whether with or without modifications, on and after the appointed day, the said instrument shall so far as applicable and with any necessary

modifications, remains in force as from that day as if it were an instrument of the appropriate kind duly made by the appropriate authority under the said

provision as in force after that day, and may be varied or revoked accordingly.

6. Where any law made by the Governor of a Province by virtue of section 93 of the Government of India Act, 1935, is in force immediately before the appointed

day, the said law, notwithstanding that the said section is directed to be omitted in the schedule to this Order or that by reason of such omission a Proclamation

under the said section ceases to have effect, shall remain in force for the period for which it would have remained in force if the said section had been

at all material times in operation.

7. (i) Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day was holding any

civil post under the Crown in

161

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connection with the affairs of the Governor-General or Governor-General in Council or of a Province other than Bengal or the Punjab shall, as from that

day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India, or, as the

case may be, of the Province.

(ii) Notwithstanding that Section 170 of the Government of India Act, 1935, is directed to be omitted in the Schedule to this Order, the person holding

the office of the Auditor of India Home Accounts immediately before the appointed day is hereby authorised to continue, until such date as the Governor-General

may specify, to perform such duties, and exercise such powers, in relation to transactions in the United Kingdom affecting the revenues of India or of

any Province thereof as he was before the appointed day performing or exercising under the provisions of the said Section 170.

THE SCHEDULE

1. The Government of India Act, 1935, Section, Adaptations.

2. Omit.

3. For this section substitute :

3 "The Governor-General, The Governor-General of India is appointed by His Majesty by a Commission under the Royal Sign Manual."

4. Omit.

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5. "For this section substitute :

5 "Establishment of the Dominion. (1) The Dominion of India established by the Indian Independence Act, 1947, shall as from the fifteenth day of August,

1947 be a Union comprising,

(a) the Provinces hereinafter called Governor's Provinces,

(b) the Provinces hereinafter called Chief Commissioner's Provinces,

162

(c) the Indian States acceding to the Dominion in the manner hereinafter provided and

(d) any other areas that may with the consent of the Dominion be included in the Dominion.

(2) The said Dominion of India is here after in this Act referred to as ''the Dominion" and the said fifteenth day of August is hereafter in this Act referred

to as "the date of the establishment of the Dominion".

6. For this section substitute:

6, "Accession of Indian States (1) An Indian State shall be deemed to have acceded to the Dominion if the Governor-General has signified his acceptance

of an instrument of Accession executed by the Ruler thereof whereby the Ruler on behalf of the State :

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(a) declares that re-accedes to the Dominion with the intent that the Governor-General, the Dominion Legislature, the Federal Court and any other Dominion

authority established for the purposes of the Dominion shall, by virtue of his Instrument of Accession, but subject always to the terms thereof, and for

the purposes only of the Dominion exercise in relation to the State such functions as may be vested in by order under this Act; and

(b) assumes the obligation of ensuring that due effect is given within the State to the provisions of the Act so far as they are applicable therein by virtue

of the Instrument of Accession.

(2) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion Legislature may make laws

for the State, and the limitations, if any, to which the power of the Dominion Legislature to make laws for the State, and the exercise of the executive

authority of the Dominion in the State, are respectively to be subject.

163

(3) A Ruler may, by a supplementary Instrument executed by him and accepted by the Governor-General, vary the Instrument of Accession of his State by extending

the functions which by virtue of that Instrument are exercisable by any Dominion authority in relation to his State.

(4) References in this Act to the Ruler of a State include references to any persons for the time being exercising the powers of the Ruler of the State,

whether by reason of the Ruler's minority or for any other reason.

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(5) In this Act a State which has acceded to the Dominion is referred to as an Acceeding State and the Instrument by virtue of which a State has so acceded,

construed together with any supplementary instrument executed under this section, is referred to as the Instrument of Accession of that State.

(6) As soon as may be after any Instrument of Accession or supplementary Instrument has been accepted by the Governor-General under this section, copies

of the Instrument and of the Governor-General's acceptance thereof shall be laid before the Dominion Legislature, and all courts shall take judicial notice

of every such Instrument and acceptance."

7. In sub-section (2), omit all words after "by or under this Act."

8. In sub-section (1), for paragraphs (a), (b) and (c), substitute "to the matters with respect to which the Dominion Legislature has power to make laws,

including the exercise of rights, authority and jurisdiction in and in relation to areas outside the Dominion", and in the proviso omit paragraphs (iii)

and (iv).

9. For this section substitute :

9, "Council of ministers. There shall be a council of ministers to aid and advise the Governor-General in the exercise of his functions."

10. In sub-section (2) omit "either Chamber of" Omit sub section (5),

164

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11 to 15 Omit.

16. In sub section (2), "British India" substitute "any Governor's or Chief Commissioner's Province" and for "federal interests" substitute "Dominion interests"

Omit subsection (4).

17. In sub-section (3), omit all words after "the said business". Omit sub sections (4) and (5).

18. For this section substitute :

18. "Constitution of the Dominion Legislature. The powers of the Dominion Legislature under this Act shall until other provision is made by or in accordance

with a law made by the Constituent Assembly under sub-section (1) of Section 8 of the Indian Independence Act, 1947, be exercisable by that Assembly, and

accordingly references in this Act to the Dominion Legislature shall be construed as references to the Constituent Assembly."

19. In sub-section (1), omit "The Chambers" of In subsection (2), for "The Chambers" substitute "the Dominion Legislature", omit "or either Chamber" and

omit paragraph (c).

20. In sub-section (1), omit "either Chamber of" and "or both Chambers assembled together". In sub-section (2), omit "either Chamber of" and for "a Chamber

to whom any message is so sent" substitute the Legislature.

21. Omit "every counselor".

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For "either Chamber, any joint sitting of the Chambers and any committee of the Legislature" substitute "the Dominion Legislature or any committee thereof."

22. Omit sub-section (1), (2), (3) and (5).

In sub-section (4), for "and the Deputy President of the Council of State" substitute "of the Dominion Legislature", for "salaries" substitute "salary"

and omit "respectively".

23. Omit "or Speaker".

In sub-section (1), for "or joint sitting of the Chambers substitute of the Dominion Legislature.

In sub-section (2) omit "A Chamber of".

In sub-section (3), for "a Chamber" and "the Chamber" substitute "the Legislature".

24 to 27 Omit.

165

28. In sub-section (1), omit "either Chamber of", In sub-section (2), for "the Chambers" substitute "the Dominion Legislature", Omit sub-sections (3) and

(4).

In sub-section (5), for "a Chamber" substitute "the Legislature".

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29. For "either Chamber" substitute" the Legislature".

30. For this section substitute :

30. "Provisions as to Pending Bills (1) A Bill pending in the Dominion Legislature shall not lapse by reason of the prorogation of the Legislature.

(2) A Bill which, immediately before the establishment of the Dominion, was pending in the Legislative Assembly of the Indian Legislature may, subject to

any provision to the contrary which may be included in rules made by the Dominion Legislature under Section 38 of this Act, be continued in the Dominion

Legislature, as if the proceedings taken with reference to the Bill in the said Legislative Assembly had been taken in the Dominion Legislature".

31. Omit.

32. In sub-section (1), for "Chambers" substitute "Dominion Legislature" and omit "or that he reserves the Bill for the signification of His Majesty's pleasure."

Omit sub-sections (2) and (3).

33. In sub-section (1) omit "both Chambers of",

In sub-section (2), omit all the words after "from other expenditure".

In sub-section (3).

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(i) in paragraph (a), for "required to be made by Order in Council" substitute "made by or under the Third Schedule to this Act". (ii) for paragraph (c)

substitute.

"c) the salaries and allowances of ministers, of the Advocate-General and of Chief Commissioners. Omit sub-section (4).

34. In sub-section (1) omit "either Chamber of" and "or paragraph (f)".

In sub-section (2) for "Federal Assembly, and thereafter to the Council of State, and either Chamber" substitute

166

"Dominion Legislature which", and Omit sub-section (3).

35. In sub-section (1) for "chambers" substitute "Legislature" and omit the proviso.

In sub-section (2) for "both Chambers" substitute "the Legislature".

To sub-section (3), add :

"Provided that expenditure from the said revenues during the period beginning with the 15th day of August, 1947 and ending with the 31st day of March, 1948

may be authorised or ratified by general or special order of the Governor-General."

36. Omit "both Chambers of".

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37. In sub-section (1) omit all words after "Governor-General".

In sub-section (3) for "either Chamber" substitute "the Dominion Legislature" and for "that Chamber" substitute the Legislature".

38. In sub-section (1) omit. "Each Chamber of" and the proviso.

Omit sub-sections (2) and (4).

In sub-section (3) after "with respect to" insert "the Legislative Assembly or" and for "Governor-General" substitute "President of that Legislature".

39. Omit.

40. Omit sub-section(2).

42. For this section substitute :

42. "power of Governor-General to promulgate Ordinance in case of emergency. The Governor-General may, in case of emergency make and promulgate Ordinances

for the peace and good Government of the Dominion or any part thereof, and any Ordinance so made shall, for the space of not more than six months from

its promulgation, have the like force of laws as an Act passed by the Dominion Legislature; but the power of making Ordinances under this section is subject

to the like restrictions as the power of the Dominion Legislature under this Act to make laws; as an any Ordinance made under this section may be revoked

or superseded by any such Act."

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43 to 45 Omit.

167

46. In sub-section(l) for the words from "Bengal" to "Sind" Substitute "West Bengal, the united Provinces, East Punjab Bihar, the Central Provinces and

Berar, Assam and Orissa."

Omit sub-section (2).

47, For this section substitute :

47. "Provisions as to Berar. Berar shall continue to be governed together with the Central Provinces as one Governor's Provinces and Berar and in the same

manner as immediately before the establishment of the Dominion; and any references in this Act to the Dominion of India shall be construed as including

a reference to Berar."

48. For sub-section (1) substitute :

(1) "The Governor of a Province holding office as from the date of the establishment of the Dominion is appointed by His Majesty by a Commission under the

Royal Sign Manual; but any person appointed thereafter to be the Governor of a Province shall be appointed by the Governor-General."

50. For this section substitute :

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50. "Council of Ministers. There shall be a Council of Ministers to aid and advise the Governor in the exercise of his functions."

51. Omit sub-section (5). 52 to 54 Omit.

55. Omit sub-section (4). 56 to 58 Omit.

59. In sub-section (3) omit all words after "said business".

Omit sub-sections (4) and (5).

60. In sub-section (1) for "Bengal, the United Provinces, Bihar and Assam" substitute" the United Provinces and Bihar".

62. Omit sub-section (3).

67. For the words from "that one" to the end substitute "the form set out in that behalf in the Fourth Schedule to this Act".

68. Omit sub-section (2).

69. In sub-section (1), in paragraph (e), omit "whether before or after the commencement of this part of this Act," and for "by a Court in British India

or in a state which is

168

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Federated State" substitute "before the date of the establishment of the Dominion by a Court in British India, or on or after that date by a Court in a

Governor's or Chief Commissioner's Province or an acceding State", and in paragraph (f) for "Federal" substitute "Dominion Legislature".

71. In sub-section (2) for the words from "commencement of this Part" to "Province" substitute "establishment of the Dominion enjoyed by members of that

Chamber, or in the case of West Bengal and East Punjab, by members of the Provincial Legislative Assemblies of Bengal and the Punjab, respectively."

72. Omit all words after "Legislature", and add the following proviso :

"Provided that until other provisions is so made, members of the Legislative Assemblies of West Bengal and East Punjab shall be entitled to receive salaries

and allowances at such rates and upon such conditions as were immediately before the establishment of the Dominion applicable in the case of members of

the Legislative Assemblies of Bengal and the Punjab respectively".

74. In sub-section (2) omit "or affects the discharge of any of his special responsibilities" and the last sentence.

76. In sub-section (1) omit "or that he reserves the Bill for the signification of His Majesty's pleasure thereon".

77. Omit.

78. In sub-section (2) omit all words after "from other expenditure", In paragraph (a) of sub-section (3) for "required to be made by Order in Council"

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substitute "made by or under the Third Schedule to this Act".

Omit sub-section (4).

80. Omit the proviso to sub-section (1).

To sub-section (3), add :

"Provided that expenditure from the revenues of the Province of West Bengal or East Punjab during the period beginning with the 15th day of August, 1947

and ending with the 31st day of March, 1948 may be authorised or ratified by general or special order of the Governor."

83. Omit.

84. In sub-section (1) omit the proviso.

In sub-section (2) omit the last sentence.

169

For sub-section (3) substitute :

"(3) Until rules are made under this section the rules of procedure and standing orders in force immediately before the establishment of the Dominion with

respect to the Legislative Assemblies of Bengal and the Punjab, respectively, shall have effect in relation to the Legislative Assemblies of West Bengal

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and East Punjab, subject to such modifications and adaptations as may be made therein by the Speakers of those Assemblies."

85. Omit.

86. Omit sub-section (2).

88. For the Proviso to sub-section (1) substitute:

"Provided that the Governor shall not, without instructions from the Governor General, promulgate any such ordinance if an Act of the Provincial Legislature

containing the same provisions would under this Act have been invalid unless, having been reserved for the consideration of the Governor-General, it has

received assent of the Governor-General."

In sub-section (2) omit paragraph (b).

89&90 Omit.

91. For this section substitute :

91. "Excluded areas and partially excluded areas. In this Act, the expressions excluded area and partially excluded area mean respectively such area as

were excluded or partially excluded areas immediately before the establishment of the Dominion."

92. In sub-section (2) omit all words after "shall have no effect".

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Omit sub-section (3).

93. Omit.

94. In sub-section (1) omit "British Baluchistan". Omit sub-section (2).

95. Omit.

96. For this section substitute :

96, "The Andaman and Nicobar Islands. The Governor-General may make regulations for the peace and good government of the Andaman and Nicobar Islands, and

any regulations so made may repeal or amend any Act of the Dominion Legislature or any existing law which is for the

170

time being applicable to the Province, and, when promulgated by the Governor-General, shall have the same force and effect as an Act of the Dominion Legislature

which applies to the Province."

97. For "His Majesty in Council" substitute "or in accordance with a law made by the Constituent Assembly under sub-section (1) of Section 8 of the Indian

Independence Act, 1947".

98. Omit.

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99. In sub-section (1) of "for the whole or any part of British India or for any Federated State" substitute "(including laws having extra territorial operation)

for the whole or any part of the Dominion".

Omit sub-section (2). 102. For sub-section (3) substitute : "(3) A Proclamation of Emergency may be revoked by a subsequent Proclamation."

104. Omit sub-section (2).

105. Omit.

108. Omit.

107. In sub-section (2), omit "or for the signification of His Majesty's pleasure", and "or of His Majesty".

109. In sub-section (2), in paragraph (a), for "by the Governor-General or by His Majesty, "substitute" or by the Governor-General," and in paragraph (b),

for "either by the Governor-General or by His Majesty" substitute "by the Governor-General".

110 to 121 Omit.

123. Omit.

126. In the proviso to sub-section (2), omit "either Chamber of".

Omit sub-section (4).

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In sub-section (5), for the words from "Without prejudice" to "governor of substitute "The Executive Authority of the Dominion shall also extend to the

giving of directions to".

126A. In paragraph (a), omit all words after "exercised."

129. In sub-section (4), for "the Governor-General in his discretion" substitute" an arbitrator appointed by the Chief Justice of India."

171

In sub-section (5), omit all words after "any part thereof."

131. Omit the proviso to sub-sections (5) and (7), the words "His Majesty in Council or," and subsection (9).

134. For "the Ruler whereof" substitute "unless the Ruler thereof", and for "are not to apply" substitute "are to apply."

135. Omit. "His Majesty upon consideration of representations addressed to him by."

For "His Majesty in Council" substitute "the Governor General".

136. Omit "and subject to the provisions of this Act with respect to the Federal Railway Authority."

138. For "Federal" substitute "Dominion", and for "subsequent order in council "substitute "Order of the Governor-General."

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In sub-section (1), for "one per cent, or such other" substitute "such".

In sub-section (4), for "His Majesty in Council" substitute "Order of the Governor-General" and omit "of the Federal Railway Authority".

139. Omit.

140. In sub-section (2) for "one-half or such greater proportion as His Majesty in Council it may determine" substitute "such proportion as the Governor-General

may by order determine".

142. For "His Majesty in Council" substitute "order of the Governor General", for His Majesty" substitute "the Governor-General", and omit the proviso.

143. After sub-section (1) insert :

"(IA) Nothing in the foregoing provisions of this Chapter authorizes the levy of any duty or tax by the Dominion in any acceding State unless provision

in that behalf is made in the Instrument of Accession of that State".

145 to 149 Omit.

150. For "India" substitute "the Dominion".

151. Omit sub-section (2).

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152. Omit

153. Omit "either Chamber of".

172

154A. Omit "the Federal Railway Authority or" and "that authority or".

155. In sub-section (1), for "British India" substitute "India".

157 to 161 Omit.

162. Omit "Subject to the provisions of Part XIII of this Act with respect to borrowing in sterling".

163. In sub-section (4), for "the Governor-General and the decision of the Governor-General in his discretion shall be final" substitute" an arbitrator

appointed by the Chief Justice of India, whose decision shall be final".

165. Omit.

166. In sub-section (2), for "His Majesty in Council" substitute "Order of the Governor-General".

In sub-section (3), for "His Majesty in Council" substitute "the Governor-General".

167. In sub-section (1), for "His Majesty" substitute "the Governor" and omit "after the expiration of two years from the commencement of Part III of this

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Act."

In paragraph (b) of sub-section (2), for "sub-section (3)" substitute "sub-sections (2) and (3)". 170 to 173 Omit.

175. In sub-section (1), omit the proviso.

In sub-section (2), omit "or of the exercise of the functions of the Crown in its relations with the Indian States" In sub-section (3) omit "Subject to

the provisions of this Act with respect to the Federal Railway Authority".

176. Omit sub-section (2).

177. Omit.

178. Omit all sub-sections except sub-section (3). In subsection (3) after "this Act" insert "and of the Indian Independence Act, 1947.

179 to 199 Omit.

200. In sub-section (1) for "as His Majesty" substitute" as the Governor-General" and for "an address has been presented by the Federal Legislature to the

Governor-General for submission to His Majesty praying for" substitute as resolution is passed by the Dominion Legislature approving".

173

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In sub-section (2), for "His Majesty by warrant under the Royal Sign Manual" substitute "order of the Governor-General" and in paragraph (b) of the proviso

omit "by His Majesty" where those words occur for the second time.

In sub-section (3), omit" in British India or in a Federated State" and paragraph (i) of the proviso.

Add the following to sub-section (3) :

"In this sub-section the expression 'High Court' includes a High Court in an acceding State and any Court which was a High Court in British India".

201. For "His Majesty in Council" substitute "the Governor-General".

202. In sub-section (1), for "appointed by His Majesty" substitute "permanently appointed" and for the purpose substitute as acting Chief Justice.

In sub-section (2) for "appointed by His Majesty" substitute "permanently appointed".

204. In paragraph (a) of the proviso to sub-section (1) in sub-paragraph (i) after the word "there under" insert "before the date of the establishment of

the Dominion, or of an order made there under on or after that date, or the interpretation of the Indian Independence Act, 1947, or of any order made there

under":

For sub-paragraph (iii) substitute :

"(iii) arises under an agreement between the State and the Dominion or a Province being an agreement which expressly provides that the said jurisdiction

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shall extend to such a dispute, and in the case of an agreement with a Province, has been made with the approval of the Governor- General".

205. In sub-section (1), omit "in British India", and after "made there under" insert "before the date of the establishment of the Dominion or any order

made there under on or after that date, or as to the interpretation of the Indian Independence Act, 1947, or of any order made there under.

206. In sub-section (1), omit "in British India" and all words after "certificate as aforesaid".

In sub-section (2) omit "in British India".

174

In sub-section (3) omit "either Chamber of".

207. In sub-section (1), for "made there under or" substitute made there under before the date of the establishment of the Dominion or an order made there

under on or after that date, or concerns the interpretation of the Indian Independence Act, 1947, or of an order made there under or concerns.

208. In paragraph (a), for "made there-under, or substitute made there under before the date of the establishment of the Dominion, or an order made there

under on or after that date, or concerns the interpretation of the Indian Independence Act, 1947, or of an order made there under or concerns.

210. In sub-section (2), omit "as respect British India and the Federated States" and "in British India" and for "British India or of any" substitute a

Governor's Province. Chief Commissioner's Province or".

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212. For "British India" omit "as respects British India and the Federated states" and "in British India" and for "British India or of any" substitute "a

Governor's Province, Chief Commissioner's Province or".

216. Omit sub-section (2).

217. For "His Majesty" substitute" the Governor-General".

218. Omit "in British India" and for "outside British India" substitute "outside India".

219. For "British India" substitute "India" In sub-section (91) for the words from "Lahore" to "and in Sind" substitute "Patna and Nagpur, the High Court

of East Punjab, the Chief Court in Oudh for "His Majesty in Council" substitute" an Act of the appropriate Legislature", and in the proviso for the words

from "has been made" to "then, as from" substitutes "is made by His Majesty by Letters Patent for the establishment of a High Court to replace any court

or court mentioned in this sub-section, then, as from".

Add the following sub-section :

"(3) In this Chapter, 'India' means the territories comprised in the Governors Provinces and Chief Commissioners

175

Provinces and does not include any Acceding State.

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220. In sub-section (1), for "as His Majesty may "substitute" as the Governor-General may" and for "His Majesty in Council may fix" substitute "the Governor-General

may by order fix".

In sub-section (2), "His Majesty may by warrant under the Royal Manual" substitute "the Governor-General, "in paragraph (b) of the proviso omit "by His

Majesty" where those words occur for the second time, and in paragraph (c) omit "by His Majesty".

In sub-section (3), omit the proviso, and after "shall be included" insert and in computing the period during which a person has served as a Judge of a

High Court, or been a pleader of a High Court, or held judicial office in India, any period before the establishment of the Dominion during which the person

has served as a judge or been a pleader of a High Court in British India or has held Judicial office in India, as the case may be, shall be included".

221. For "His Majesty in Council" substitute "order of the Governor-General".

222. In sub-section (1), for "appointed by His Majesty" substitute "pemanenty appointed" and for "for the purpose" substitute "as acting Chief Justice".

In sub-section (2), for "appointed by His Majesty" substitute "permanently appointed".

223. After "any other Act" insert to the provisions of any order made under the Indian Independence Act, 1947 "and for "commencement of Part III of this

Act" substitute "establishment of the Dominion".

228. Omit sub-section (2).

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229. In sub-section (1) for "His Majesty in Council "substitute "The Governor-General", for 'extent' substitute "by order extend", and for "British India"

substitute "India".

In sub-section (2), for "commencement of Part III of this Act" substitute "establishment of the Dominion".

231. In sub-section (2), omit "and expenses".

232 to 239 Omit.

240. In sub-section (2), after "aforesaid" insert- "who

176

having been appointed by the Secretary of State or the Secretary of State in Council continues after the establishment of the Dominion to serve under the

Crown in India shall be dismissed from the services of His Majesty by any authority subordinate to the Governor-General or the Governor according as that

person is serving in connection with the affairs of the Dominion or of a Province, and no other such person as aforesaid.

241. In sub-section (1), omit "after the commencement of Part III of this Act".

In sub-section (2) to (5), omit "in India".

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In sub-section (3), in paragraph (a), for "some person empowered by the Secretary of State to give directions in that respect substitute "the Governor-General

or the Governor as the case may be", and in paragraph (b), for "Secretary of State or by some person empowered by the Secretary of State to give directions

in that respect" substitute "Governor-General or the Governor as the case may be".

242. Omit sub-sections (1) and (2).

In sub-section (3), after "to posts in the" insert "railway".

244 to 246 Omit.

247. For this section, substitute "247, Conditions of service of persons originally recruited by Secretary of State. The conditions of service of all persons

who, having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India, continue on and after

the date of the establishment of the Dominion to serve under the Government of the Dominion or of any Province, shall.

(a) as respects persons serving in connection with the affairs of the Dominion, be such as may be prescribed by rules made by the Governor-General;

(b) as respects persons serving in connection with the affairs of a Province.

(i) in regard to their pay, leave, pension, general rights as medical attendence and any other matter which immediately before the establishment

177

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of the Dominion was regulated by rules made by the Secretary of State, be such as may be prescribed by rules made by the Governor-General; and

(ii) in regard to any other matter, be such as may be prescribed by rules made by the Governor of the Province. 248 to 252 Omit.

253. In sub-section (1), for "orders in Council" substitute "orders of the Governor-General, and for "His Majesty" substitute "the Governor-General".

In sub-section (2), after "meaning of this Act' insert "as originally enacted". Omit sub-section (3). 257 to 259 Omit.

260. For the words from "commencement of Part III" to the end of the sub-section substitute "establishment of the Dominion shall, if it would have been

payable by the Government of any Province if the Indian Independence Act, 1947, had not been passed, be paid out of the revenues of that Province, or if

that Province has ceased to exist, of such new Province as may be determined by orders made under that Act, and in any other case shall be paid out of

the revenues of the Dominion of India or of Pakistan as may be so determined".

261. Omit.

262. Omit sub-section (3) and (5).

In paragraph (a) of the proviso to sub-section (4) for "is in the permanent service of the Crown in India' substitute "was in the permanent service of the

Crown in India (within the meaning of this Act as originally enacted)".

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265. In sub-section (1) omit "in India".

266. In sub-section (3) omit "The Secretary of State as respects services and posts to which appointments are made by him," and "other" before services

and posts".

In sub-section (4) for the words from "the various communities" to "in India" substitute "communities or in the case of the subordinate ranks of police-forces".

267. Omit all words after "Governor".

178

269&270 Omit.

271. In sub-section (2) for "Indian Code of Criminal Procedure" substitute "Code of Criminal Procedure, 1898" and for "Indian Code of Civil Procedure" substitute

"Code of Civil Procedure 1908," and omit "either chamber of".

Omit sub-section (2).

In sub-section (30, for "Indian Code of Civil Procedure" substitute "Code of Civil Procedure 1908".

272 to 274 Omit.

275. Omit paragraph (c).

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277. Omit sub-section (2) and (3).

278 to 289 Omit.

290. In sub-section (1) for "His Majesty may, by Order in Council" substitute "the Governor-General may by Order," and for the words from "before the draft,"

to "Chamber or Chambers of the Legislature" substitute "before making any such Order the Governor-General shall ascertain the views of the Government".

For sub-section (2) substitute :

"2, An Order made under this sub-section* may contain such provisions as the Governor-General may deem necessary or proper :

(a) for varying the representation in the Dominion Legislature of any Governor's Province the boundaries of which are altered by the Orders;

(b) for varying the composition of the Legislature of any such province;

(c) where a new Governor's Province is created for constituting the Legislature thereof;

(d) for appointments and adjustments of and in respect of assets and liabilities; and

(e) for other supplemental, incidental and consequential matters".

291. For "His Majesty in Council may from time to time take provision" substitute "in relation to any Provincial Legislature, provision may be made by Act

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of that Legislature".

292 to 294 Omit.

295. Omit sub-section (1).

179

296. In sub-section (1) for "British India" substitute "a Governor's or Chief Commissioner's Province".

298. In sub-section (1) omit "British". Omit sub-section (3).

299. In sub-section (1) Omit "in British India". In sub-section (3) Omit "either Chamber of".

300. Omit.

302. Omit.

303. In sub-section (1) for "Bengal" substitute "West Bengal".

Omit sub-section (3).

305 A Omit.

306. In sub-section (1) for "against the Governor of a Province, or against the Secretary of State" substitute "or against the Governor of a Province, "for

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His Majesty in Council" Substitute "the Governor-General," after "has been the Governor-General" insert His Majesty a Representative for the exercise of

the functions of the crown in its relations with Indian States", and in the proviso for "a Province or the Secretary of State" substitute "or a Province".

Omit sub-section (2).

307 to 310 Omit.

311. Omit sub-sections (1), (3), (4) and (5).

In sub-section (2) - in the definition of "corresponding Province" for "His Majesty in Council", substitute the Governor-General, in the definition of "existing

law, "for commencement of Part III of this Act, substitute establishment of the Dominion, and after territories insert which were; in the definition of

"pension" omit "in India, Burma or Aden". In the definition of "Indian State Railway" omit the Federal Railway Authority".

In sub-section (6) for "Federal" substitute "Dominion", and omit "or a Governor-General's Act and "or a Governor's Act.

312 to 320 Omit.

19. In sub-section (2), for "Governor-General" substitute "President of the Dominion Legislature".

22. To sub-section (4), add the following :

180

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"Any reference in this Act to the President of the Dominion Legislature shall, except in Sections 19 and 38, be construed as including a reference to any

other person elected by the Constituent Assembly to preside over that Assembly when it functions as the Dominion Legislature under this Act".

49. in sub-section (1), for, "Federal" substitute "Dominion Legislature.

107. In the proviso to sub-section (2), omit "either Chamber of".

137. In the proviso, for "Federal" substitute "Dominion Legislature.

141. In sub-section (1), omit "either Chamber of".

150. In sub-section (2), for "Federal substitute "Dominion Legislature".

166. In sub-section (1), for "His Majesty" substitute "the Governor-General".

176. In sub-section (1), for "Federal" substitute "Dominion Legislature".

178. In sub-section (3), for "Federal" substitute "Dominion Legislature".

220. In clause (c) of sub-section (3) omit "British".

225. For "Federal" substitute "Dominion".

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226. In sub-section (2), for "in a Chamber of the Federal or a Provincial Legislature" substitute "in the Dominion Legislature or in a Chamber of a Provincial

Legislature".

242. In sub-section (4), for "said section" substitute "last preceding section".

296. In sub-section (1), for "Federal" substitute "Dominion Legislature".

304. Omit "by His Majesty".

311. In sub-section (2), in the definition of "estate duty" for "Federal" substitute "Dominion".

First Schedule Omit.

Second Schedule Omit.

Third Schedule Omit.

In paragraph omit all entries after the entry relating to the Governor-General and insert :

"The Governor of a Province ... 60,000 rupees. Provided that the annual salary payable to any person who having

181

been the Governor of a Province immediately before the 15th day of August, 1947, continues to be the Governor of that Province, shall be the same as before

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that date".

In paragraph 2 for "fixed by His Majesty in Council" substitute "fixed, as respects the Governor-General by order of the Governor-General", and for "determined

by His Majesty in Council" substitute 'so determined'.

In paragraph 3 for "His Majesty in Council" substitute "such an Act, or, as the case may be, an order, as aforesaid." In paragraph 4 for "Order in Council"

substitute such as Act, or, as the case may be, an order, as aforesaid."

In paragraph 4 for "Order in Council "substitute" such an Act, or, as the case may be, an order, as aforesaid.

In paragraph 5 for "appointed by His Majesty" substitute "such an Act, or as the case may be, an order as aforesaid.

After paragraph 6 insert :

"7, Until other provisions is made by Act of the Dominion Legislature, the Governor-General shall be entitled to the same allowances and privileges as he

was entitled to immediately before the date of the establishment of the Dominion under the rules and orders, then in force.

Fourth Schedule

For the Forms substitute: -

Form of oath or affirmation to be taken or made by a member of a Legislature :

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"1. A.B. having been elected (or nominated or appointed) a member of this Council (or Assembly), do solemnly swear (or a firm) that I will bear true faith

and allegiance to the Constitution of India as by law established, and that I will faithfully discharge the duty upon which I am about to enter".

2. Form of judicial oath or affirmation:-

"I.A.D. having been appointed Chief Justice (or a Judge of the Court do solemnly swear (or affirm) that I will bear true faith and allegiance to the Constitution

of India as by law established and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment."

182

Fifth Schedule

In paragraph 4 — in sub-paragraph (ii) for "ten columns" substitute" nine columns," and omit "(e) the European community."

Omit the last sentence.

In paragraph 5 for "His Majesty in Council may deem" substitute "The Governor-General may by order declare", and omit (v) for the election of persons to

fill the European seats, if any.

In paragraph 8, for "fifth to nineteen" substitute fourteen to eighteen.

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Omit paragraph 11.

In paragraph 12, omit "by a European".

In paragraph 14, for "fiftieth and sixth" substitute and fifth omit the European community "for seventh substitute sixth, and for eighth substitute seventh.

In paragraph 16, omit a European constituency, "and a European."

In paragraph 19 — for the definitions of "a European," "an Anglo-India," "an Indian Christian" and the Scheduled Castes substitute the following definitions

:

"a European' means a person whose father or any of whose other male progenitors in the male line is or was of European descent and who is not a native of

India or Pakistan or any Indian State.

'an Indian Christian' means a person who professes any form of the Christian religion and is not a European or an Anglo India.

'the scheduled castes' means such castes, races or tribes or parts or groups within castes races or tribes being castes, races, tribes parts or groups which

appear to Governor-General to correspond to the classes of persons formerly known as 'the depressed classes' as the Governor-General may by order specify;

for "His Majesty in Council may from time to time substitute "Governor-General may from time to time by order".

for "His Majesty in Council" in the definition of "prescribed" substitute "Order of the Governor-General.

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To paragraph 19, add :

"For the purposes of this paragraph, a person shall be

183

deemed to be a native of India or Pakistan or an Indian State, if and if he is a person domiciled in India, Pakistan or an Indian and born of parents habitually

resident in the territories comprised therein and not established there for temporary purposes only,"

In paragraph 20, for "His Majesty in Council" substitute" order of the Governor-General."

Sixth Schedule

In Part I :

In paragraph 5, omit, "a European constituency" a European.

In paragraph 6, omit "European.

Seventh Schedule

"1. The naval, military and air forces of the Dominion and any other amend forces raised or maintained by the Dominion; and amend forces which are not forces

of the Dominion but are attached to or operating with any of the armed forces of the Dominion; central intelligence bureau, preventive detention for reasons

of state connected with defence, external affairs or relations with Acceding States."

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In entry 2. omit "(Not being cantonment areas of India State troops)", and omit "within British India",

In entry 9, for "Federal" substitute "Dominion",

In entry 17, after "domiciled in India "insert "or" and omit "or British subjects domiciled in the United Kingdom".

In entries 34 and 36, for "Federal control" substitute, "dominion control";

for entry 39 substitute :

"39 Extension of the powers and jurisdiction of members of a police force belonging to any province to any area in another province, but not so as to enable

the police of one province to exercise powers and jurisdiction in another province without the consent of the Government of that Province; extension of

the powers and jurisdiction of members of a Police force belonging to any unit to railway areas outside that unit.

184

In this entry 'province' includes "a Chief Commissioner provinces; in entry 40, omit and of any Order in Council made there under.

In entry 4, 'for the words from "Federal Ministers" to "Federal Assembly" substitute "Dominion Minister of and of the President and Deputy President of

the Dominion Legislature", and omit "to such extent as is expressly authorised by Part II of this Act".

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In list II.

In entry II, omit "and of any Order in Council made there under";

In entries 23 and 29, for "Federal" substitute "dominion";

In entry 34 of List III, for "Federal" substitute "Dominion"

Eighth Schedule

Omit.

Ninth Schedule

Omit.

II. The India (Central Government and Legislature) Act, 1946.

185

Instrument of Accession of Jammu and Kashmir State

Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August, 1947, there shall be set up as independent Dominion, known

as India and that the Government of India Act, 1935, shall, with such omission, additions adaptations and modifications as the Governor-General may by

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order specify be applicable to the Dominion of India;

AND WHEREAS the Government of India Act, 1935 as so adapted by the Governor General provides that an Indian State may accede to the Dominion of Indian by

an Instrument of Accession executed by the Ruler thereof :

Now Therefore

I. Shriman Inder Mahendra Rajrajeshwar Maharajadiraj Shri Hari Singh Ji, Ruler of Jammu and Kashmir in the exercise of my sovereignty in and over my said

State Do hereby execute this my Instrument of Accession, and

1. I hereby declare that I accede to the Dominion of India with the Intent that the Governor-General of India, the Dominion Legislature, the Federal Court

and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession, but subject always to

the terms therefore and for the purpose only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter referred to as "this

State") such functions may be vested in them by or under the Government of India Act, 1935 as in force in the Dominion of India on the 15th Day of August,

1947 (which Act as so in force is hereinafter referred to as "the Act").

2. I hereby assume the obligation of ensuring that due effect is given to the provision of the Act within this State as they are applicable therein by virtue

of this my Instrument of Accession.

3. I accept the matters specified in the scheduled here to as the matters with respect to which the Dominion Legislature may make laws for this State.

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186

4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor-General and the Ruler of this

State where by any functions in relations to the administration in this State of any law of the Dominion Legislature shall be exercised by the Ruler of

this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.

5. The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment

is accepted by me by an Instrument supplementary to this Instrument.

6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorising the compulsory acquisition of land for any

purpose, but I hereby undertake that should the Dominion for the purpose of Dominion law which applies in this State deem it necessary to acquire any land

I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed or in default

of agreement determined by an arbitrator to be appointed by the Chief Justice of India.

7. Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future constitution of India or to fetter my discretion

to enter into arrangement with the Governments of India under any such future constitution.

8. Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or saves as provided by or under this Instrument the exercise

of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.

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9. I hereby declare that I execute this Instrument on behalf of this State and that any reference in this Instrument to me or to the Ruler of this State

is to be construed as including a reference to my heirs and successors.

187

Given under my hand this 26th day of October nineteen forty seven.

Sd/- Hari Singh

Maharaja Dhiraj of Jammu&Kashmir

I do hereby accept this Instrument of Accession. Dated this twenty seventh day of October, Nineteen hundred and forty seven.

Sd/- Mountabatten of Burma

Governor General of India

27th October, 1947

SCHEDULE

The matters with respect to which the dominion Legislature may make laws for the State.

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A. Defence

1. The naval, military and air forces of the dominion and other armed force raised or maintained by the Dominion; any armed forces, including forces raised

or maintained by an acceding State, which is attached to, or operating with the armed forces of the Dominion.

2. Naval, Military and air force works, administration of cantonment areas.

3. Arms, firearms; ammunition.

4. Explosives.

B. External Affairs

1. External Affairs, the implementing of treaties and agreements with other countries, extradition, including the surrender of criminals and accused persons

to parts of His Majesty's Dominion outside India.

2. Admission into, and emigration and expulsion from, India, including in relation thereto the regulation of the movements in India of persons who are not

British subjects domiciled in India or subjects of any acceding State; pilgrims to places beyond India.

3. Naturalisation.

188

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C. Communications

1. Posts&Telegraphs, including telephones, wireless, broadcasting and other like forms of communication.

2. Federal Railways; the regulation of all railways other than minor railways in respect of safety, maximum and minimum rates and fares, station and service

terminal charges, interchange of traffic and the responsibility of the administration of such on railways as carriers of goods and passengers, regulating

of minor railways in respect of safety, the responsibility of the administration of such railways as carriers of goods and passengers.

3. Maritime shipping and navigation, including shipping and navigation on tidal waters; admiralty jurisdiction.

4. Port quarantine.

5. Major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of Port Authorities therein.

6. Aircraft and air-navigation; the provision of aerodromes, regulation and organisation of air traffic and aerodromes.

7. Light house, including light ships, beacons and other provisions for the safety of shipping and aircraft.

8. Carriage of passengers and good by sea or by air.

9. Extension of the powers and jurisdiction of members of the police force belonging to any unit to railway area outside unit.

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D. Ancillary

1. Elections to the Dominion Legislature, subject to the provisions of the Act and of any order made thereunder.

2. Offences against laws with respect to any of the said matters.

3. Inquiries and statistics for the purpose of any of the aforesaid matters.

4. Jurisdiction and powers of all courts with respect to any of the aforesaid matters but, except with consent of the ruler of the Acceding State, not so

as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in or in relation to that State.

189

HIS HIGHNESS GOVERNMENT OF JAMMU AND KASHMIR CHIFF SECRETARIAT (GENERAL DEPARTMENT) ORDER

No. 176-H of 1947

We are hereby pleased to command that pending the formation of the Interim Government as agreed upon and in view of the emergency that has arisen I charge

Sheikh Mohamad Abdullah to function as the Head of the Administration with power to deal with emergency.

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Sheikh Mohamad Abdulla be sworn in by the Chief Justice or any other Judge of the High Court at Srinagar.

Sd/- HARISINGH Maharaja.

30th October, 1947

Published for general information.

Sd/- Ram Nath Sharma

Chief Secretary to Government.

His Highness' Government Jammu and Kashmir, Notification

Publicity Department, Press Communique, 31st October, 1947.

No. 152 His Highness the Maharaja Bahadur has been pleased to command that pending the formation of the Interim Government as agreed upon and in view of

the emergency that has arisen, Sheikh Mohamad Abdullah should function as the Head of the Administration with power to deal with the emergency :

Sheikh Mohamad Abdullah was sworn—in the Prime Minister's room at 11 A.M. by the Hon'ble Chief Justice amidst scenes of rejoices from crowds assembled in

the premises of the Secretariat. Addressing the officers of the Government present in his room, Sheikh Sahib appealed to them

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190

to give him their unstinted cooperation. He administered a stern warning to public servants against divided loyalty and asked those who had mental reservations

in their work as Government servants to decide once for all what their attitude to the new order of things was going to be. He declared that disloyal persons

could have no part lot in the administration under him. The Sheikh Sahib then shook hands with all those present. Later, he addressed from the balcony

for about an hour the waiting crowds that had swollen to thousands.

His Highness' Command Order No. 1 dated llth January, 1948

ORDER

Bakshi Ghulam Mohamad is hereby appointed as an officiating Head of Administration during the absence of Sh. Mohammad Abdullah from the State. He will exercise

the same powers and perform the same duties as Sh. Mohamad Abdullah was exercising and performing.

Wazir Janki Nath, Judge of the High Court, is authorised to administer him oath of office.

The Chief Emergency Officer is directed to arrange the swearing in ceremony.

Sd/- Hari Singh

Maharajadhiraj.

llth January, 1948

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Press Communique,

No. 36-Dated March 5,1948.

At a public Darbar held in the Durbargarh, Jammu, today His Highness Shri Maharajadhiraj of Jammu and Kashmir and dependencies made a proclamation at 1

noon. His Highness the Maharaja of Jaipur was seated on the right of His Highness. The following is the full text of the proclamation :

This fifth day of March one thousand nine hundred and forty eight in the twenty third year of my Reign.

'In accordance with the traditions of my dynasty I have from time to time, provided for increasing association of

191

my people with the administration of the State with the object of realising the goal of full responsible Government by as early a date as possible and in

pursuance of that object have, by the Jammu and Kashmir Constitution Act of 1996 (XIV of 1996) established a constitutional government with a Council of

Ministers, a Legislature with a majority of elected members and an independent judiciary :

"I have noted with gratification and pride the progress so far made and the legitimate desire of my people for the immediate establishment of a fully democratic

constitution based on adult franchise with a hereditary Ruler from my dynasty as the constitutional head of an Executive responsible to the Legislature;

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I have already appointed the popular leader of my people Sheikh Mohammad Abdullah as the Head of the Emergency Administration;

"It is now my desire to replace the Emergency Administration by a popular Interim Government and to provide for its powers, duties and functions, pending

the formation of a fully democratic constitution;

'I accordingly HEREBY ORDAIN AS FOLLOWS:

(1) My Council of Ministers shall consist of the Prime Minister and such other Ministers as may be appointed on the advice of the Prime Minister. I have

by Royal Warrant appointed Sheikh Mohammad Abdullah as the Prime Minister with effect from today.

(2) The Prime Minister and other Ministers shall function as a Cabinet and act on the principle of joint responsibility. A Dewan appointed by me shall also

be a member of the Cabinet.

(3) I take this opportunity of giving once again a solemn assurance that all sections of my people will have opportunities of service both civil and military,

solely on basis of their merits and irrespective of creed or community.

(4) My Council of Ministers shall take appropriate steps, as soon as restoration of normal conditions has been completed, to convene a National Assembly

192

based upon adult suffrage, having due regard to the principle that the number of representatives from each voting area should, as far as practicable, be

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proportionate to the population of that area.

(5) The constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contain appropriate provision guaranteeing

freedom of conscience, freedom of speech and freedom of assembly.

(6) The National Assembly shall, as soon as the work of framing the new constitution is completed, submit it to the Council of Ministers for my acceptance.

(7) In conclusion, I repeat the hope that the formation of a popular Interim Government and the inauguration in the near future, of a democratic constitution,

will ensure the contentment, happiness and the moral and material advancement of my beloved people.

Sd./HARI SINGH

MAHARAJADHIRAJ

Published in extraordinary Jammu and Kashmir Government Gazette Jammu, Friday, the 23rd Phagan 2004—5 th March.1948.

PRIME MINISTER'S SECRETARIATE,

(GENERAL DEPARTMENT)

Subject: Resumption of Jagirs.

Order No. 6-H of 1951

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10th March, 1951

WHEREAS in view of the grave emergency and acute financial stringency it is expedient to resume certain jagirs and other assignments of land revenue and

also provide for the withholding of certain concessions and exemptions attached to such grants :

NOW, therefore, in exercise of the powers vested under Section 5 of the Jammu and Kashmir Constitution Act, 1996, read with the Proclamation issued by His

Highness

193

and published in the Extraordinary issue of the Government Gazette dated 7th Har, 2006, Yuvaraj Shri Karansinghji Bahadur is pleased to command as follows

:

1. All the Jagirs tenable during the pleasure of His Highness or held in perpetuity shall be resumed and all other land granted to Jagirdars or Illaqadars

by way of compensation for relinquishment of the Jagir share in favour of rent stock or in lieu of conversion of assigned revenue in kind in or cash or

otherwise shall revert to the Government;

Provided that an assignee that has no other adequate source of income, may make an application within one month from the date of publication of this Order

in the Government Gazette to the Ministry of Revenue for grant of maintenance allowance and orders of the Government on such application shall be final.

2. All Khudkasht and residential units of land granted to Jagirdars and Illaqadars shall be resumed;

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Provided that a reasonable area for personal cultivation and the building sites or lands on which residential houses have already been built may be left

in their favour subject to payment of land revenue and other dues including ground rent in respect thereof under the law for the time being in force.

3. (i) All Muafis and Mukarraris tenable during the pleasure of His Highness or held in perpetuity or during the life-time of a Muafidar or Mukarrari-holde

as the caser be, or held in lieu of some political or specific service rendered and all other land revenue assignments shall be resumed; (ii) Nothing in

sub-clause (i) shall apply to religious Mukarraris or Muafis or those attached to religious institutions.

4. The following rights and privileges enjoyed by Jagirdars, Illaqadars and Muafidars shall be withheld and stopped :

(i) Right of recovery of Kahcharai fees within the Jagir area.

(ii) Recovery of extra Kahcharai fee leviable on account of the cattle of a Jagir village going out for grazing to Rakhs or to places beyond the Jagir village.

194

(iii) Rights of the State in undemarcated forests within the boundaries of a Jagir village.

(iv) Right of Nautors within the Jagir limits.

(v) Right of holding residual Khalsa land within the Jagir after accounting for the Shamilat rights of zamindars.

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(vi) Right of recovering revenue on water mills constructed on the area within the Jagir limits.

(vii) Recovery of ground rent on lands leased out within the Jagir limits.

(viii) Right of exemption from obtaining State Subject Certificates and from personal appearance in Civil Courts.

(ix) Shooting rights.

(x) Right of Muafidars to recover assigned revenue in kind whether the muafi is religious or otherwise.

5. (i) This order shall be deemed to have effect from 1st of Baisakh, 2005, and shall supersede all previous orders made from time to time on the subject.

(ii) No suit, prosecution or other legal proceeding whatsoever shall lie against the Government or any officer or authority for or in respect of any act

or thing done in pursuance of this Order, whether before or after the commencement of the said Order.

Sd/- KARAN SINGH,

YUVARAJ.

Published for general information.

Sd/- Teja Singh,

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Secretary to Government,

General Department.

Published in the extraordinary J&K Government Gazette dated 19th Baisakh, 2008, corresponding to 1st May, 1951

YUVARAJ.

EXTRAORDINARY

REGISTERED NO. E.P. 87

195

THE JAMMU AND KASHMIR

GOVERNMENT GAZETTE

Vol. 60 Jammu, Friday the 23rd Phagan, 2004 5th March, 1948 No. 470.

PART I-B

HIS HIGHNESS' GOVERNMENT, JAMMU AND KASHMIR NOTIFICATION PROCLAMATION OF SHREEMAN INDER MOHINDER RAJRAJESHWAR MAHARAJADHIRAJ SHREE HARISHINGH JI RULER OF

JAMMU AND KASHMIR AND DEPENDENCIES

THIS FIFTH DAY OF MARCH ONE THOUSAND NINE HUNDRED AND FORTY-EIGHT, IN THE TWENTY-THIRD YEAR OF MY REIGN

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In accordance with the traditions of my dynasty I have, from time to time, provided for increasing association of my people with the administration of the

State with the object of realising the goal of full responsible government at as early a date as possible and in pursuance of that object have by the Jammu

and Kashmir Constitution Act of 1996 (XIV of 1996) established a constitutional government with a Council of Ministers, a Legislature with a majority of

elected members and an independent Judiciary I have noted with gratification and pride the progress so far made and the legitimate desire of my people

for the immediate establishment of a fully democratic constitution based on adult franchise with a hereditary Ruler from my dynasty as the constitutional

head of an Executive responsible to the Legislature.

I have already appointed the popular leader of my people Sheikh Mohammad Abdullah as the Head of the Emergency Administration;

It is now my desire to replace the Emergency Administration by a popular Interim Government and to provide for its powers, duties and functions, pending

the formation of a fully democratic Constitution;

196

I accordingly HEREBY ORDAIN AS FOLLOWS :

1. My Council of Ministers shall consist of the Prime Minister and such other Ministers as may be appointed on the advice of the Prime Minister. I have

by Royal Warrant appointed Sheikh Mohammad Abdullah as the Prime Minister with effect from today.

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2. The Prime Minister and other Ministers shall function as a Cabinet and act on the principle of joint responsibility. A Dewan appointed by me shall also

be a member of the Cabinet.

3. I take this opportunity of giving once again a solemn assurance that the sections of my people will have opportunities of service, both civil and military

solely on the basis of their merits and irrespective of creed or community.

4. My Council of Ministers shall take appropriate steps, as soon as restoration of normal conditions has been completed, to convene a National Assembly

based upon Adult suffrage, having due regard to the principle that the number of representatives from each voting area should, as far as practicable, be

proportionate to the population of the area.

5. The Constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contain appropriate provisions guaranteeing

freedom of conscience, freedom and speech and freedom of assembly.

6. The National Assembly shall, as soon as the work of framing the new Constitution is completed, submit if through the Council of Ministers for my acceptance.

7. In conclusion I repeat the hope that formation of a popular Interim Government and the inauguration, in the near future, of a fully democratic Constitution

will ensure the contentment, happiness and the moral and material advancement of my beloved people.

Sd/- Harisingh,

Maharajadhiraj.

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EXTRAORDINARY

REGISTERED NO. E.P. 87

197

THE JAMMU AND KASHMIR GOVERNMENT

GAZETTE

Vol. 60 JAMMU, THURSDAY THE 6TH CHET 2004 = 18TH MARCH 1948 No. 494

Separate paging is given to this part in order that it may be filed as a separate compilation.

PART I-A

HIS HIGHNESS' GOVERNMENT, JAMMU AND KASHMIR ORDERS

4th March 1948.

Sh. Mohammad Abdullah is appointed Prime Minister with effect from 5th March on terms to be communicated separately.

Sh. Mohammad Abdullah will be sworn in his office by the Chief Justice.

Col. R.B. Thakore Baldevsingh Pathania is appointed Dewan with effect from 5th March on his existing emoluments.

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He will be a member of the Cabinet.

Col. R.B. Thakore Pathania will be sworn in his office by the Chief Justice.

17th March, 1948.

I, hereby appoint the following to be members of the Cabinet with effect from 18th March, 1948, on terms to be communicated later:

1. Mr. G.M. Bakshi - Home and Deputy

Prime Minister,

2. Mirza Mohd. Afzal Beg - Revenue Minister,

3. Sardar Budh Singh - Health and Rehabilitation Minister,

4. Mr. G.M. Sadiq - Development Minister,

5. Mr. S.L. Saraf - Food and Supplies Minister,

6. Mr. Girdhari Lal Dogra - Finance Minister,

7. Col. Pir Mohammad Khan - Education Minister.

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198

They will be sworn in by the Chief Justice at Jammu and by the High Court Judge at Srinagar.

EXTRAORDINARY

REGISTERED L. No. 1764

The Jammu and Kashmir Government Gazette.

(Vol. 60) Srinagar Tuesday, the 12th Jeth 2005 = 26th May 1948)

GOVERNMENT OF JAMMU AND KASHMIR

Prime Minister's Secretariat (General Department)

Order No. 20C of 1948 dated 25-5-1948.

In conformity with sub-paragraph (2) of Paragraph VI of the Proclamation of His Highness dated March 5, 1948, it is hereby orders that in place of the word

"Council" the word "Cabinet" shall be used in future.

By order of the Cabinet

S.M. Abdullah,

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Sd/-PRIME MINISTER.

199

BARRING OF CIVIL COURT'S JURISDICTION IN RESPECT OF SUBJECT CERTIFICATE

Since the question of State Subject certificates is a question of high policy it does not seem sound to introduce any legislation through the Legislature

and may be treated like reserved matters. It should, the Revenue Minister is of the opinion be left to the pleasure of His Highness who may be pleased

to decide such issue in exercise of the inherent powers vesting in him under Section 5 of the Constitution Act. Therefore, in the larger interests of State

Subjects and as a matter of policy, the Revenue Minister is of the opinion that the jurisdiction of civil courts should be barred in State subject cases

on the analogy of certain revenue matters in which, as provided in Section 139(2) of land Revenue Act, 1996 and Section 25 of the Alienation of land Act,

1995 the jurisdiction of civil courts is excluded. He accordingly submits through the

Hon'ble Prime Minister the following draft order duly vetted by the Legal Rememberancer and Advocate General for Commands of His Highness the Maharaja Bahadur

: (i) In exercise of the powers inherent in as under Section 5 of the Jammu and Kashmir Constitution Act, 1996 we hereby order that no suit shall lie in

any civil court in respect of the matter for grant dismissal, or revocation of State Subject certificates or in respect of declaration of a person being

a State subject and that the order of the Revenue Minister passed in exercise or revisional jurisdiction in such cases shall be final. (ii) that this order

be published in the Government Gazette.

Sd/- Anant Ram.

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REVENUE MINISTER

CHIEF SECRETARIAT (GENERAL DEPARTMENT)

200

The Prime Minister agrees and solicits sanction.

Sd/- Prime Minister.

Sanctioned

Sd/-Hari Singh

His Highness.

In exercise of the powers inherent in under Section 5 of the Jammu and Kashmir Constitution Act, 1996 we hereby order that no suit shall in any civil court

in respect of the matter of grant, dismissal or revocation of State Subject certificate or in respect of declaration of a person being a State Subject

and that the order of the Revenue Minister passed in exercise of revisional jurisdiction in such case shall be final.

201

PROCLAMATION

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Whereas I have decided for reasons of health to leave the State for a temporary period and to entrust to the Yuvaraj Shri Karan Singh Ji Bahadur for that

period all my powers and functions in regard to the Government of the State.

Now, therefore, I hereby direct and declare that all powers and functions, whether Legislative, Executive or Judicial, which are exercisable by me in relation

to the State and its Government, including in particular my power and prerogative of making laws, of issuing proclamations, orders ordinances, of remitting,

committing or reducing sentence, and of pardoning offenders, shall during the period of my absence from the State, be exercisable by Yuvaraj Sh. Karan

Sing Ji Bahadur

Sd/- Harisingh

Maharajadhiraj

202

PROCLAMATION FOR THE STATE OF JAMMU AND KASHMIR

DATED the 25th November, 1948

(Appearing on page 371 of White Paper on Indian States)

Whereas with the inauguration of the new Constitution for the Whole of India now being framed by the Constituent Assembly of India, the Government of India

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Act, 1935, which now governs the constitutional relationship between this State and the Dominion of Indian will stand repealed;

AND WHEREAS, in the best interest of this State, which is closely linked with the rest of India by a community of interests in the economic, political and

other fields, it is desirable that the Constitutional, relationship established between this State and the Dominion of India, should be continued as between

this State and the contemplated Union of India; and the Constitution of India as drafted by the Constituent Assembly of India, which includes duly appointed

representatives of this State, provides a suitable basis for doing so;

I now hereby declare and direct—

That the Constitution of India shortly to be adopted by the Constituent Assembly of India shall in so far as it is applicable to the State of Jammu and

Kashmir, govern the constitutional relationship between this State and the contemplated Union of India and shall be enforced in the State by me, my heirs

and successors in accordance with the tenor of its provisions; that the provisions of the said Constitution shall, as from the date of its commencement,

supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.

KARAN SINGH,

Yuvaraj.

Regent of Jammu and Kashmir

203

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PROCLAMATION

WHEREAS it is the general desire of the people of the State of Jammu and Kashmir that a Constituent Assembly should be brought into being for the purpose

of framing a Constitution for the State;

WHEREAS it is commonly felt that the convening of this Assembly can no longer be delayed without detriment to the future well-being of the State;

AND WHEREAS the terms of the Proclamation of his Highness the Maharaja dated the 5th March 1948 in regard to the convening of the National Assembly as contained

in clauses 4 to 6 of the operative part thereof do not meet the requirements of the present situation :

I. Yuvaraj Karan Singh, do hereby direct as follows :

1. A Constituent Assembly, consisting of representatives of the people selected on the basis of adult franchise shall be constituted forthwith for the purpose

of framing a constitution for the State of Jammu and Kashmir.

2. For the purpose of the said elections, the State shall be divided into a number of territorial constituencies each containing a population of 40,000

or as nearly thereto as possible and each electing one member. A Delimitation Committee shall be set up by the Government to make recommendations as to

the number of constituencies and the limits of each constituency.

3. The elections to the Constituent Assembly shall be on the basis of adult franchise, that is to say every person who—

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(a) is a State subject of any class as defined in the Notification No. I-L/84 dated Jammu and 18th April 1927.

(b) is not less than 21 years of age on the 1st day of March, 1951, and

(c) has been resident in the constituency for such period as may be prescribed by rules,

204

shall be entitled to be registered as a voter in the electoral rolls for that constituency.

Provided that any person who is of unsound mind and has been so declared by a competent court shall be disqualified for such registration.

4. The voting at the elections shall be direct and by secret balot.

5. The Constituent Assembly shall have power to each notwithstanding any vacancy in the membership thereof.

6. The Constituent Assembly shall from its own agenda and make rules for regulating its procedure and the conduct of its business.

7. The Government shall make such rules and issue such instructions or orders as may be necessary to give effect to the terms of this proclamation.

8. All things done and all steps taken before the issue of this Proclamation with a view two facilitating the provisional preparation of electoral rolls

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for the purposes of elections to the Constituent Assembly shall in so for as they are in conformity with the provisions of this Proclamation be deemed

to have been done or taken under this Proclamation as if it was in force at the time such things were done or such steps were taken.

20th April, 1951

Sd/- KARAN SINGH

YUVARAJ

EXTRAORDINARY

REGISTERED NO. E.P. 87

205

The Constitution (Application to Jammu and Kashmir) October, 1950

"In exercise of the powers conferred by clause (1) or Article 370 of the Constitution of India, the President, in consultation with the Government of the

State of Jammu and Kashmir, is pleased to make the following order, namely:

1. (1) This order may be called the Constitution (Application to Jammu and Kashmir) Order, 1950. (2) It shall come into force at once.

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2. For the purpose of sub-clause (b) (i) of Article 370 of the Constitution, the matters specified in the First Schedule to this order being matters in

the Union List, are hereby declared to correspond to matters specified in the Instrument of Accession governing the accession of the State of Jammu and

Kashmir to the Dominion of India as the matters with regard to which the Dominion Legislature may make laws for the State, and accordingly, the powers

of Parliament to make laws for the State shall be limited to the matters specified in the said First Schedule.

3. In addition to the provisions of Articles 1 and Article 370 of the Constitution, the only other provisions of the Constitution which shall apply in relation

to the State of Jammu and Kashmir shall be those specified in the Second Schedule to this order, and shall so apply subject to the exception and modifications

specified in the Second Schedule.

THE FIRST SCHEDULE

(Note: The number of each entry in this Schedule is the number in the corresponding entry in the Union List)

1. Defence of India and every part thereof including preparation for defence.

2. Naval, military and air forces work, and other armed forces of the Union.

3. Delimitation of cantonment areas, local self government in such area, the constitution and powers within such areas of constitution and powers within

such areas of cantonment authorities and the regulations of house accommodation

206

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(including the control of rents) in such areas.

4. Naval, military and air force works.

5. Arms, firearms ammunition and explosives.

6. Atomic energy for the purpose of defence and mineral resources necessary for its production.

9. Preventive detention for reason connected with defence, Foreign Affairs or the security of India.

10. Foreign Affairs; all matters which bring the Union into relation with any foreign country.

11. Diplomatic, consular and trade representation.

12. United Nations Organisation.

13. Participation in international conferences, associations and other bodies and implementing of decisions made there at.

14. Entering into treaties and agreements with foreign countries and implementing of the treaties, agreements and conventions with foreign countries.

15. War and peace.

16. Foreign jurisdiction.

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17. Naturalization and aliens.

18. Extradition.

19. Admission into, and emigration and expulsion from India, passport and visas.

20. Pilgrimages to places outside India.

21. Piracies and crimes committed on the high seas or in the air offence against the law of nations committed on land or on the high seas or in the air.

22. Railways, but as respects any railway owned by the State of Jammu and Kashmir, and either operated by that State or operated on its behalf otherwise

than in accordance with a contract with the state by the Government of India, limited to the regulation thereof in respect of safety, maximum and minimum

rates and fares, station and service terminal charges, interchange of traffic and the responsibility of the railway administration as carriers of goods

and passengers and as respects any railway which is wholly situate within the State and does not form a continuous line of communication with a railway

owned by the Government of India, whether of the same gauge or not, limited to the regulation thereof in respect of safety and the responsibility

207

of the railway administration as carriers of goods and passengers.

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25. Maritime shipping and navigation, including shipping and navigation on tidal waters provision of education and training for the mercantile marine and

regulation of such education and training provided by States and other agencies.

26. Lighthouses, including lightships, beacon and other provision for the safety of shipping and aircraft.

27. Ports declared by or under law made by parliament or existing law to be major ports, including their delimitation and the constitution and powers of

port authorities therein.

28. Port quarantine, including hospitals, connected there with, seamen's and marine hospitals.

29. Airways, aircraft and air navigation, provision of aerodromes, regulation and organisation of air traffic and of aerodromes, provision for aeronautical

education and training and regulation of such education and training provided by States and other agencies.

30. Carriage of passengers and goods by Railway Sea or air.

31. Posts and telegraphs, telephones, wireless, broadcasting and other like forms of communications.

41. Trade and commerce with foreign countries.

72. Elections to Parliament and the offices of President and Vice President, the Election Commission.

73. Salaries and allowances of member of parliament, the chairman and Deputy Chairman of the Council of States, and the Speaker and Deputy Speaker of the

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House of the People.

74. Powers, privileges and immunities of each house of Parliament and of the members and the committees of each House, enforcement of attendance of persons

for giving evidence or producing documents before committee of Parliament or commissions appointed by Parliament.

75. Salaries and allowances of the Ministers for the Union, the salaries, allowances and rights in respect of leave of absence and other conditions of service

of the Comptroller and Auditor-General.

208

76. Audit of the accounts of the Union.

77. Constitution and organisation of the Supreme Court and the fees taken therein, persons entitled to practice before the Supreme Court.

80. Extension of the powers and jurisdiction of members of a police force belonging to any state to railway areas outside the State.

93. Offences against laws with respect to any of the matters aforesaid.

94. Inquiries and statistics for the purpose of any of the matters aforesaid.

95. Jurisdiction and powers of all courts, except the Supreme Court with respect to any of the matter aforesaid, but, except with the consent of the State

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Government not so as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in, or in relation to, the

State, admiralty jurisdiction.

96. Fees in respect of any of the matters aforesaid but not including fees taken in any court.

209210211212

table with 3 columns and 16 rows

Provision of the Constitution applicable

Exception

Modifications

Part V.

Articles 72(1) (c) 72(3), 133, 134, 135,136, 138, 145(1) (c) and 152(2).

1. Articles 80 and 81 shall apply subject to the modification that the representatives of the State in the Council of States and the House of the people

respectively, shall be chosen by the President in consultation with the Government of the State. 2. Articles 149 and 150 shall apply subject to the modification

that the references therein to the State shall be construed as not including the State of Jammu and Kashmir.

Part XI.

Articles 247 to 252, clauses (3) and (4) of Articles 257 and articles 260, 262 and 263.

1. Clause (1) of Article 246 shall apply subject to the provisions of paragraphs 2 of this order and clause 2, 3 of Article 246 shall not apply in relation

to the State. 2. Clause (1) of Article 259 shall apply subject to the modification that after the words "until parliament by law otherwise provides" the

words "and the concurrence of the State to such law has been obtained shall be deemed to be inserted.

Part XII.

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Articles 264, and 265, clause (2) and of Article 267, articles 268 to 281 clause 2 of articles 283, articles 286 to 291, 293, 295, and 297. Articles 325

to 329.

1. Article 266 shall apply only so far as it relates to the consolidated Fund of India and the public account of India. 2. Articles 282 and 284 shall apply

only in so far as they relate to the Union or the Public account of India. 3. Articles 298, 299 and 300 shall apply only in so far as they relate to the

Union or the Government of India.

Part XV.

-

Article 324' shall apply only in so far as it relates to elections to Parliament and to the offices of the President and Vice President.

Part XVI.

Articles 332, 33 and 337 to 342.

1. Article 330 shall apply only in so far as it relates to seats reserved for Scheduled Castes. 2. Article 334 shall apply only in so far as it relates

to the House of the People.

Part XVII.

Nil

3. Articles 335 shall apply only in so far as it relates to the Union. The provisions of this part shall apply only in so far as they relate to the official

language of the Union and to proceedings in the Supreme Court.

Part XIX.

Articles 362, 363 and 365.

1. Article 361 shall apply in far as it relates to the President. 2. Article 364 shall apply only in so far as it relates to the laws made by Parliament.

Part XX.

Nil

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Article 368 shall apply subject to the additional provision: "Provided further that no such amendment shall have effect in relation to the State of Jammu

and Kashmir unless applied by order of the President under clause (1) of Article 370."

Part XXI.

Articles 363, 371, and 373, clause (4) of Articles 374, articles 376 and 378 and clause 2 of article 388.

1. In clause (3) of Article 379 after the words "Minister for any such State" the words "other than the State of Jammu and Kashmir" shall be deemed to be

inserted. 2. Article 389 shall apply only in so far as it relates to Bills pending in the Dominion Legislature. 3. Article 390 shall apply only in so far

as it relates to the consolidated Fund of India.

Part XXII.

Nil

Nil.

First Schedule.

Nil

Nil.

Second Schedule

Paragraph 6

Nil.

Third Schedule.

Form V, VI, VII and VIII

Nil.

Fourth Schedule

Nil

Nil.

Eight Schedule

Nil

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Nil.

table end

213

Published in the Gazette of India, Extraordinary, Part II Section 3 dated the 20th March, 1952.

MINISTRY OF LAW

New Delhi, the 20th March, 1952

S.R.O. The following order made by the President of India published for general information.

C.O. 39.

The Constitution (Application to Jammu and Kashmir) (Amendment) Order 1952.

In exercise of the powers conferred by clause (1) of Article 370 of the Constitution of India, the President, in Consultation with the Government of the

State of Jammu and Kashmir, is pleased to make the following Order, namely :

1. (i) This order may be called the Constitution (Application to Jammu and Kashmir) (Amendment) Order, 1952. (ii) It shall come into force at once.

2. In the Second Schedule to the Constitution (Application to Jammu and Kashmir) Order, 1950, in the entry in the third column relating to Part V after

modification (1) the following modification shall be inserted namely :

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"(IA) Articles 54 and 55 shall apply subjects to the modifications—

(a) that the reference therein to the elected members of both Houses of Parliament and to each elected member of either House of Parliament shall be

214

deemed to include respectively, a reference to the representatives of the State in those Houses and to each such representative.

(b) that the references to the elected members of the Legislative Assemblies of the States and to each such elected member shall be deemed to include, respectively,

a reference to the members of the Constituent Assembly of the State and to each member, and

(c) that the population of the state shall be deemed to be forty four lakhs and ten thousand."

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954

C.O. 48

In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State

of Jammu and Kashmir, is pleased to make the following Order :

1. (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 1954. (2) It shall come into force on the fourteenth day of May

1954, and shall there upon supersede the Constitution (Application to Jammu and Kashmir) Order, 1950.

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2. The provisions of the Constitution (as in force on the 20th day of June, 1964) (and as amended by the Constitution (Nineteenth Amendment) Act, 1966)4

(and the Constitution (Twentyfirst Amendment) Act, 1967) which, in addition

Published with the Ministry of Law Notification No. S.R.O. 1610, dated the 14th May, 1954 Gazette of India, Extraordinary, Part II Section 3.

Subs by the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1965 (C.O. 74).

In s. by the Constitution (Application to Jammu and Kashmir) Amendment Order, 1967 (C.O. 76). In s. by the Constitution (Application to Jammu and Kashmir)

Third Amendment Order, 1967 (C.O. 79).

215

to article I and article 370, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall

so apply shall be as follows :

1. THE PREAMBLE

2. PART I.

To article 3, there shall be added the following further proviso, namely :

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"Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that

State shall be introduced in Parliament without the consent of the Legislature of that State"

3. PART II

(a) This Part Shall be deemed to have been applicable in relation to the State of Jammu and Kashmir as from the 26th day of January, 1950.

(b) To article 7, there shall be added the following further proviso, namely :

"Provided further that nothing in this article shall apply to a permanent resident of the State of Jammu and Kashmir who, after having so migrated to the

territory now included in Pakistan, returns to the territory of that State under a permit for re-settlement in that State or permanent return issued by

or under the authority of any law made by the Legislature of that State, and every such person shall be deemed to be a citizen of India."

4. PART III

(a) In article 13, reference to the commencement of the Constitution shall be construed as references to the commencement of this Order

(b) In clause (4) of article 15, the reference to Scheduled Tribes shall be omitted.

216

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(c) In clauses (3) of articles 16, the reference to the State shall be construed as not including a reference to the State of Jammu and Kashmir.

(d) In article 19, for a period of1 (twenty years)2 from the commencement of this Order :

(i) in clauses (3) and (4) after the words "in the interests of", the words "the security of the State of" shall be inserted;

(ii) in clause (5), for the words "or for the protection of the interests of any Scheduled Tribes", the words, "or in the interests of the security of the

State" shall be substituted; and (iii) the following new clause shall be added, namely :

'(7) The words "reasonable restrictions" occurring in clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate Legislature

deems reasonable.'

(e) In clauses (4) and (7) of article 22, for the words "Parliament", the words "the Legislature of the State" shall be substituted.

(f) In article 31, clauses (3), (4) and (6) shall be omitted; and for clause (5), there shall be substituted the following clauses, namely :

"(5) Nothing in clause (2) shall affect—

a) the provisions of any existing law; or

b) the provisions of any law which the State may hereafter make—

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i) for the purpose of imposing or levying any tax or penalty; or

ii) for the promotion of public health or the prevention of danger to life or property; or

iii) with respect to property declared by law to be evacuee property."

1. Subs, by the Constitution (Application to Jammu and Kashmir) Amendment Order, 1964 (C.O. 69), for "ten years".

2. Subs, by the Constitution (Application to Jammu and Kashmir) Second Amendment Order. 1969 (C.O. 86), for "fifteen"

217

(g) In Article 31 A, the proviso to clause (1) shall be omitted; and for sub-clause (a) of clause (2), the following sub-clause shall be substituted, namely

:

'(a) "estate" shall mean land which is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and

includes :

(i) sites of buildings and other structures on such land;

(ii) trees standing on such land;

(iii) forest land and wooded waste;

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(iv) area covered by or fields floating over water;

(v) sites of jandars and gharats;

(vi) any jagir, inam, muafi or mukarrari or other similar grant, but does not include-

(i) the site of any building in any town or town area or village abadi or any land appurtenant to any such building or site;

(ii) any land which is occupied as the site of a town or village; or

(iii) any land reserved for building purposes in a municipality or notified area or cantonment or town area or any area for which a town planning scheme

is sanctioned.

(h) In article 32, clause (3) shall be omitted; and after clause (2), the following new clause shall be inserted, namely :

"(2A) without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which

it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders

or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any

of the rights conferred by this part."

(i) In article 35—

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(i) references to the commencement of Constitution shall be construed as references to the commencement of this Order;

218

(ii) in clause (a) (i) the words, figures and brackets "clause (3) of article 16, clause (3) of article 32" shall be omitted; and

(iii) after clause (b), the following clause shall be added, namely :

"(c) no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of

the Constitution (Application to Jammu and Kashmir) Order, 1954 shall be void on the ground that it is inconsistent with any of the provisions of this

part, but any such law shall, to the extent of such inconsistency, case to have effect on the expiration of (twenty years) from the commencement of the

said Order, except as respects things done or omitted to be done before the expiration thereof."

(j) After article 35, the following new article shall be added, namely :

"35A, Saving of law with respect to permanent resident and their rights. Notwithstanding any thing contained in this Constitution, no existing law in force

in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State :

(a) defining the classes or persons who are, or shall be, permanent residents of the State of Jammu and Kashmir, or

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(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;

(ii) acquisition of immovable property in the State;

(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State Government" may provide, shall be void on the ground that is inconsistent with or takes

1Subs by C.O. 69, for "ten years"

2Subs by C.O. 86, for "fifteen".

219

away or abridges any rights conferred on the other citizens of India by any provision of this Part."

5. PART V.

1(a) For the purposes of article 55, the population of the State of Jammu and Kashmir shall be deemed to be forty-four lakhs and ten thousand.

(b) In article 81, for clauses (2) and (3), the following clause shall be substituted, namely :

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"(2) For the purposes of sub-clause (a) of clause (1)—

(a) there shall be allotted to the State six seats in the House of the People;

(b) the State shall be divided into single member territorial constituencies by the Delimitation Commission constituted under the Delimitation Commission

Act, 1962, in accordance with such procedure as the Commission may deem fit;

(c) the constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing

boundaries of administrative units, facilities of communication, and public convenience;

(d) the constituencies into which the State is divided shall not comprise the area under the occupation of Pakistan; and

(e) until the dissolution of the existing House of the People, the representatives of State in that House shall be appointed by President on the recommendation

of the Legislature of the State.")

2(c) In article 134, clause (2), after the words "Parliament may" the words "on the request of

220

the Legislature of the State" shall be inserted. 2(d) Articles 135*** and 139 shall be omitted.

4

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55A. PART VI.

(a) Article 153 to 217, article 219, article 221 and articles 223 to 237 shall be omitted.

(b) In article 220, references to the commencement of the Constitution shall be construed as references to the commencement of the Constitution (Application

to Jammu and Kashmir) Amendment Order, 1960.

6(c) in article 222, after clause (1), the following now clause shall be inserted, namely :

"(1A) Every such transfer from the High Court of Jammu and Kashmir or to that High Court shall be made after consultation with the Governor.")

6. PART XL

7(a) In article 246, for the words, brackets and figures "clauses (2) and (3)" occurring in clause (1), the word, brackets and figures "clause (2)" shall

be substituted, and the words, brackets and figure "Notwithstanding anything in clause (3)," occurring in clause (2) and the whole of clauses (3) and (4)

shall be omitted.

8(b) For article 248, the following article shall be substituted, namely :

2 CIs. (d) and (e) reletting as cls. (c) and (d) by C.O. 66.

3 The figures "136" omitted by the constitution (Application to Jammu and Kashmir Amendment Order, I960 (C.O. 60) (w.o.f. 26-1-1960)

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4 Cls. (f) and (g) omitted by C.O. 56.

5 Ins. by C.O. 60 (w.e.f. 26-1-1960)

6 Subs by C.O. 74 ford, (c) (w.e.f. 24-11-1965)

7 Subs by C.O. 66, for d. (a)

8 Cl. (f) omitted by C.O. 66

221

"248, Residuary powers of legislation, Parliament has exclusive power to make any law with respect to prevention of activities directed towards disclaiming,

questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or succession

of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution." (bb)

Article 249 shall be omitted.)

(c) In article 250, for the words "to any of matters enumerated in the State List", the words "also to matters not enumerated in the Union List" shall be

substituted.

(d) In article 251, for the words and figures" "articles 249 and 250", the word and figures "article 250" shall be substituted, and the words "under this

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Constitution" shall be omitted; and, for the words "under either of the said articles" the words "under the said article" shall be substituted.

(e) To article 253, the following provision shall be added, namely :

"Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State

of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State" 1* * * * * * *

2(f) Article 255 shall be omitted.

2(g) Article 256 shall be re-numbered as clauses (1) of that article, and the following new clause shall be added thereto namely :

1 Cl. (f) omitted by C.O. 66

2 Cl. s. (g) and (h) relettered as cls (f) and (g) by C.O. 66.

222

"(2) The State of Jammu and Kashmir shall so exercise its executive power as to facilitate the discharge by the Union of its duties and responsibilities

under the Constitution in relation to that State; and in particular, the said State shall, if so required by the Union, acquire or requisition property

on behalf and at the expense of the Union, or if the property belongs to the State, transfer it to the Union on such terms as may be agreed, or in default

of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India."

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*(h) In clause (2) of article 261, the words "made by Parliament" shall be omitted.

7. PART XII 1******

2(a) Clause (2) of article 267, article 273, clause (2) of article 283, articles 290 and 291 shall be omitted.

2(b) In articles 266, 282, 284, 298, 299 and 300, references to the State or States shall be construed as not including references to the State of Jammu

and Kashmir.

2(c) In articles 277 and 295, references to the commencement of the Constitution shall be construed as references to the commencement of this Order.

# Cl (i) omitted by C.O. 56

* Cl (j) relettered as el. (i) ibid, and again relettered as cl. (h) by C.O. 66

1 Cls. (a) and (b) inserted by the Constitution (Application to Jammu and Kashmir) Amendment Order, 1958 (C.O. 55) have been omitted by C.O 56.

2 Cls. (a) (b) and (c) (relettered as (c), (d) and (e) respectively by C.O. 55) have again been relettered as (a), (b) and (c), respectively by C.O.56

223

8. PARTXIII

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3***

In clause (1) of article 303, the words "by virtue of any entry relating to trade commerce in any of the Lists in the Seventh Schedule" shall be omitted.

9. PART XIV.

4(In article 312, after the words "the State" the brackets and words "(including the State of Jammu and Kashmir)" shall be inserted.)

510. PART XV.

(a) In clause (1) of article 324, the reference to the Constitution shall, in relation to elections to either House of the Legislature of Jammu and Kashmir,

be construed as a reference to the Constitution of Jammu and Kashmir.

6(b) In articles 325, 326, 327 and 329, the reference to a State shall be construed as not including a reference to the State of Jammu and Kashmir.

(c) Article 328 shall be omitted.

(d) In article 329 the words and figures" or article 328" shall be omitted.)

11. PART XVI.

(a) In article 330, references to "Scheduled Tribes" shall be omitted.

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3 Brackets and letter (a) and cl. (b) omitted ibid.

4 Subs for the previous modification, ibid.

5 Subs by C.O. 60, for sub-paragraph (10) (w.e.f. 26. 1. 1960)

6 Subs by C.O. 75, for cls. (b) and (c)

224

(b) Articles 331, 332, 333, 336, 337, 339 and 342 shall be omitted.

(c) In articles 334 and 335, references to the State or the states shall be construed as not including references to the State of Jammu and Kashmir.

12. PART XVII.

The provisions of the Part shall apply only in so far as they relate to :

(i) the official language of the Union;

(ii) the official language for communication between; and

(iii) the language of the proceedings in the Supreme Court.

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13. PART XVIII.

(a) To article 352, the following new clause shall be added, namely :

"(4) No Proclamation of Emergency made on grounds only internal disturbance or imminent danger thereof shall have effect in relation to the State of Jammu

and Kashmir (except as respects article 354) unless it is made at the request or with the concurrence of the Government of that State."

(b) In clause (1) of article 356, references to provisions or provision of this Constitution shall, in relation to the State of Jammu and Kashmir, be construed

as including references to provisions or provision of the Constitution of Jammu and Kashmir.

(c) Article 360 shall be omitted.

1 ' Subs, by the Constitution (Application to Jammu and Kashmir) Third Amendment Order, 1964 (C.O.) 71), for cl. (b).

225

14. PART XIX.

2(a) Articles 362 and 365 shall be omitted.

3 * * * * * * *

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2(b) To article 367, there shall be added the following clause namely : "(4) For the purpose of this Constitution as it applies in relation to the State

of Jammu and Kashmir :

(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitutions or the provisions thereof as applied

in relation to the said State.

3(aa) references to the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat

of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the

Governor or Jammu and Kashmir.

(b) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice

of his Council of Ministers : Provided that in respect of any period prior to the 10th day of April, 1956, such references shall be construed as including

references to the Sadar-i-Riyasat acting on the advice of his Council of Ministers;

1 Cl. (a) omitted by C.O. 74

2 Cls (b) and (c) relettered as cls. (a) and (b) ibid

3 Original cl. (c) omitted by C.O. 56

4 Subs. by C.O. 74 for cl- (b)

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226

(c) references to High Court shall include references to the High Court of Jammu and Kashmir;

1* * ** * **

2(d) references to the permanent resident of the said State shall be construed as meaning persons who, before the commencement of the Constitution (Application

to Jammu and Kashmir) Order, 1954, were recognised as State subjects under the laws in forces in the State or who are recognised by any law made by the

Legislature of the State as permanent residents of the State; and

3(e) references to a Governor shall include references to the Governor of Jammu and Kashmir : Provided that in respect of any period prior to the 10th day

of April, 1965, such references shall be construed as references to the person recognised by the President as the Sadar-i-Riyasat of Jammu and Kashmir

and as including references to any person recognised by the President as being competent to exercise the powers of the Sardar-i-Riyasat."

15. PART XX.

To article 368, the following proviso shall be added, namely:

"Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under

clauses (1) of article 370"

16. PART XXI.

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(a) Articles 369, 371,4(371A), 5(372A), 373, clauses

1 Cl. (d) omitted by CO. 56

2 Cl. (e) relettered as cl. (d), ibid.

3 Subs, by CO. 74, for cl (e)

4 Ins. ibid

5 Ins. by C.O. 56

227

(1), (2), (3) and (5) of article 374 and '(articles 376 to 378A and 392) shall be omitted.

(b) In article 372 :

(i) Clauses (2) and (3) shall be omitted;

(ii) references to the laws in force in the territory of India shall include references to hidayats, alians, ishtihars, circulars, robkars, irshads, yadashts,

State Council Resolutions, Resolutions of the Constituent Assembly, and other instruments having the force of law in the territory of the State of Jammu

and Kashmir; and

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(iii) references to the commencement of the Constitution shall be construed as references to the commencement of this Order.

(c) In clause (4) of article 374, the reference to the authority functioning as the Privy Council of a State shall be construed as a reference to the Advisory

Board constituted under the Jammu and Kashmir Constitution Act, 1996 and references to the commencement of the Constitution shall be construed as references

to the commencement of this Order.

17. PART XXII.

Articles 394 and 395 shall be omitted.

18. FIRST SCHEDULE.

19. SECOND SCHEDULE.

2* ******

20. THIRD SCHEDULE.

Forms V, VI, VII, and VIII shall be omitted.

21. FOURTH SCHEDULE. 322. SEVENTH SCHEDULE.

(a) In the Union List :

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(i) for entry 3, the entry "3, Administration of cantonments, "shall 'be substituted;

1 Subs, ibid, for "articles 376 to 392"

2 Modification relating to paragraph 6 omitted by C.O. 56.

3 Subs, by C.O. 66, for sub-paragraph (22).

228

1(ii) entries 8, 9, 34 and 60, the words "and records" in entry 67, entry 79, and words" Inter-State migration" in entry shall be omitted;)

2* * * * * * *

3(iii) in entry 72, the references to the State shall be construed :

(a) in relation to appeals to the Supreme Court from any decision or order of the High Court of the State of Jammu and Kashmir made in an election petition

whereby an election to either House of the Legislature of that State has been called in question, as including a reference to the State of Jammu and Kashmir;

(b) In relation to other matters, as not including a reference to that State) 4(and)

4(iv) for entry 97, the following entry shall be substituted, namely : "97. Prevention of activities directed towards disclaiming questioning or disrupting

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the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory

of India from the Union or causing or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution.")

(b) the State List shall be omitted.

5(c) In the Concurrent List :

6(i) for entry I, the following entry shall be substituted namely :

1 Subs, by C.O. 85 for item (ii)

2 Original item (iii) omitted by C.O. 74

3 Subs, by C.O. 83, for item (iii)

4 Ins. by C.O. 85

5 Subs, by C.O. 69 for cl. (c)

6 Subs, by C.O. 70, for item (i)

229

"I. Criminal Law (excluding offences against laws with respect to any of the matters specified in List I and excluding the use of naval, military or air

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forces or any other armed forces of the Union in aid of the civil power) in so far as such criminal law relates to offences against laws with respect to

any of the matters specified in this list.")

1* * * * * * *

2/3(ii) For entry 30, the entry "30. Vital statistics in so far as they relate to births and deaths, including registration of births and deaths" shall

be substituted;)

(iii) entries 2 and 3, entries 5 to 10 (both inclusive),

7/8(entries 12 to 15 (both inclusive), entries 17), 20, 21, 27, 28, 29, 31, 32,8***37 and 38 and entries 40 to 44 (both inclusive) shall be omitted; and)

9(iv) in entry 45, for the words and figures : List II or List III" the words" this List" shall be substituted.

23. EIGHTH SCHEDULE.

1 Ins. by C.O. 70.

2 Item (iv) renumbered as item (ii) y C.O. 74.

3 Items (v) and (vi) omitted by C.O. 72.

4 Subs, ibid, for the format item.

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5 Items (vi) a and (vii) renumbered as items (iii) and (iv) respectively by C.O. 74.

6 "Subs, by the Constitution (Application to Jammu&Kashmir) Second Amendment Order, 1967 (C.O. 77), for "entries 12 to 21 (both inclusive), entries"

7 "Subs, by the Constitution (Application to Jammu and Kashmir) Fourth Amendment Order, 1967 (C.O. 80) for "entries 12 to 18 (both inclusive), entries"

8 Entry 36 omitted by C.O. 74.

230

124. NINTH SCHEDULE.

After entry 64, the following entries shall be added, namely :

"65. The Jammu and Kashmir State Kuth Act (o. 1 of Svt. 1978)

66. The Jammu and Kashmir Tenancy Act (No. 11 of Svt. 1980)

67. The Jammu and Kashmir Alienation of Land Act (No. V of Svt. 1995).

68. The Jammu and Kashmir Restitution of Mortgaged Properties Act (No. XVI of Svt. 2006)

69. The Jammu and Kashmir Distressed Debtors Relief Act (No. XVII of St. 2006).

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70. The Jammu and Kashmir Big Landed Estates Abolition Act (No. XVII of Svt. 2007).

71. Order No. 6-E of 1951, dated 10th March, 1951, regarding Resumption of Jagirs and other assignments of land revenue, etc.

1 Subs by C.O. 74 for sub-paragraph (24).

231232233

*THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954-C.O. 18

DATED 14-5-1954.

(as amended upto 31st March, 1969, C.O. 86 of 1969) [See Gazetee of India dated 14th May, 1954

(Extraordinary)]

table with 3 columns and 23 rows

SI. No.

Year

Particulars

1

1956

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1956 (C.O. 51 dated. 11-2-1956).

2

1958

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(i) The Constitution (Application to Jammu and Kashmir) Amendment Order, 1958 (C.O. 55 dated 16-1-1958).

3

-

(ii) The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1958 (C.O. 56 dated 26-2-1958).

4

1959

(i) The Constitution (Application to Jammu and Kashmir) Amendment Order, 1959 (C.O. 57 dated 9-2-1959).

5

-

(ii) The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1959 (C.O. 59 dated 23-4-1959).

6

1960

(i) The Constitution (Application to Jammu and Kashmir) Amendment Order, 1960 (C.O. 60 dated 20-1-1960).

7

-

(ii) The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1960 (C.O. 61 dated 22-6-1960).

8

1961

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1963 (C.O. 62 dated 2-5-1961).

9

1963

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The Constitution (Application to Jammu and Kashmir) Amendment Order, 1963 (C.O. 66 dated 25-9-1963).

10

1964

(i) The Constitution (Application to Jammu and Kashmir) Amendment Order, 1964 (C.O. 69 dated 6-3-1964).

11

-

(ii) The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1964 (C.O. 71 dated 2-10-1964).

12

-

(iii) The Constitution (Application to Jammu and Kashmir) Third Amendment Order, 1964 (C.O. 71 dated 21-12-1964).

13

1965

(i) The Constitution (Application to Jammu and Kashmir) Amendment Order, 1965 (C.O. 72 dated 17-5-1965).

14

-

(ii) The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1965 (C.O. 74 dated 24-11-1965).

15

1966

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1966 (C.O. 75 dated 29-6-1966).

16

1967

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(i) The Constitution (Application to Jammu and Kashmir) Amendment Order, 1967 (C.O. 76 dated 13-2-1967).

17

-

(ii) The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1967 (C.O. 77 dated 5-5-1967).

18

-

(iii) The Constitution (Application to Jammu and Kashmir) Third Amendment Order, 1967 (C.O. 79 dated 11-8-1967).

19

-

(iv) The Constitution (Application to Jammu and Kashmir) Fourth Amendment Order, 1967 (CO. 80 dated 26-12-1967).

20

1968

The Constitution (Application to Jammu and Kashmir) Amendment Order, 1968 (C.O. 83 dated 9-2-1968).

21

1969

(i) The Constitution (Application to Jammu and Kashmir) Amendment Order, 1969 (C.O. 85 dated 17-2-1969).

22

-

(ii) The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1969 (C.O. 86 dated 31-3-1969).

table end

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By Courtesy-Home Secretary to the Govt. of India.

Note-1. The Constitution (Application to Jammu and Kashmir) Order, 1950 was the first Order made on 26th January, 1950 (C.O. 10 dated 26-1-1950). This Order

was superseded by the Constitution (Application to Jammu and Kashmir) Order, 1954 (C.O. 48 dated 14-5-1954).

Note-2. In the footnotes C.O. means the Constitution (Application to Jammu and Kashmir) Amendment Order.

234

6-point Indira-Sheikh pact of 1975

Highlights of the "agreed conclusions":

• Jammu and Kashmir, which is a constituent unit of the Union of India, shall in its relations with the Union continue to be governed by Article 370 of

the Indian Constitution.

• The residuary powers of legislation shall remain with the state; however, Parliament will continue to have power to make laws relating to the prevention

of activities against the sovereignty and territorial integrity of India.

• Any provision of the Indian constitution which had been applied to the state with modifications will be altered or repealed by presidential order; but

provisions already applied without modification are unalterable.

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• The state will be free to have its own legislation on matters like welfare measures, cultural maters, personal law and procedural laws. The state government

can review the laws made by Parliament or extended to the State after 1953 on any matter relatable to the concurrent list and may be decided which of them

needs amendment or repeal. In future the state government shall be consulted regarding the application of any such law to the state.

• Any law made by the state legislature seeking to change any provision of the state constitution relating to : a (the appointment, powers and immunities

of the Governor; and b) the control of elections by the Indian Election Commission, eligibility for inclusion in the electoral rolls without discrimination,

adult suffrage and composition of the Legislative Council will need the president's assent.

• No agreement was possible on the question of nomenclature of the Governor and the Chief Minister. (Sheikh Abdullah wanted the titles to be Sadar-e-Riyasat

(head of state) and Wazir-e-Azam (prime minister).)

235

Published in the Gazette of India, (Extraordinary) Part II Section 3 (i)

No. 150 dated August 24, 1971/Bhadra 2, 1893

MINISTRY OF LAW AND JUSTICE

New Delhi the 24th August, 1971

S.S.K. 1218: The following Order made by the President is published for general information:

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C.O. 89

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR)

AMENDMENT ORDER, 1971

In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State

of Jammu and Kashmir, is pleased to make the following Order :

1. (1) This Order may be called the Constitution (application to Jammu and Kashmir) Amendment Order, 1971.

(2) It shall come into force at once.

2. In paragraph 2 of the Constitution (application to Jammu and Kashmir) October, 1954 :

(1) in the opening portion for the words brackets and figures "and the Constitution (Twenty-first Amendment) Act, 1967", the words brackets and figures,"

the Constitution (Twenty-first Amendment) Act 1967 and Section 5 of the Constitution (Twenty-third Amendment) Act, 1969" shall be substituted.

(2) in sub-paragraph (4) (relating to PART III), for clause (h) the following clause shall be substituted namely :

"(h) in Article 32 clause (3) shall be omitted."

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236

(3) in sub-paragraph (5A) (relating to PART VI), for clause (a) the following clause shall be substituted, namely :

"(a) Articles 153 to 217 article 219, article 221, articles 223, 224 and 225 and article 227 to 237 shall be omitted."

237

Published in the Gazette of India, (Extraordinary) Part II Section 3 (i)

No. 199 dated November 8, 1971/Kartika 17, 1893

MINISTRY OF LAW AND JUSTICE

New Delhi the 8th November, 1971

S.S.R. 1687 : The following Order made by the President is published for general information :

C.O. 89

The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1971.

In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of State of

Jammu and Kashmir, is pleased to make the following Order :

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1. (1) This Order may be called the Constitution (application to Jammu and Kashmir) Amendment Order, 1971. (2) It shall come into force at once.

2. In paragraph 2 of the Constitution (application to Jammu and Kashmir) October, 1954, in sub-paragraph (22) (relating to the seventh Schedule) in item

(iii) of clause (c) for the words, figures and brackets" and 38, and entries 40 to 44 (both inclusive)", the word and figures" 38, 40, 41, 42 and 44" shall

be substituted.

238

PUBLISHED IN THE GAZETTE OF INDIA,

(Extra,) Part II Sec. 3 (i) No. 65 dated February 24, 1972/Phalguna 5, 1893

MINISTRY OF LAW AND JUSTICE

New Delhi the 24th February, 1972

S.S.R. 98 (A) : The following Order made by the President is published for general information :

C.O. 92

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) AMENDMENT ORDER, 1972

In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State

of Jammu and Kashmir, is pleased to make the following Order :

l.(l) This Order may be called the Constitution (application to Jammu and Kashmir) Amendment Order, 1972.

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(2) It shall come into force at once. 2. In paragraph 2 of the Constitution (application to Jammu and Kashmir) Order, 1954: in sub-paragraph (22) (relating

to the Seventh/Schedule), in item (ii) of clause (a), for the figures and words "34 and 60" the words and figures and "34" shall be substituted.

239

Published in the Gazette of India, (Extraordinary)

Part II Sec. 3 (i), No. 205 dated August 10, 1972/ Sravana 19, 1894

MINISTRY OF LAW AND JUSTICE

New Delhi the 10th August, 1972

G.S.R. 372 (E) : The Following Order made by the President is published for general

information :

C.O. 95

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) FOURTH

AMENDMENT ORDER, 1972

In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State

of Jammu and Kashmir, is pleased to make the following Order :

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1. (1) This Order may be called the Constitution (application to Jammu and Kashmir) Third Amendment Order, 1972.

(2) It shall come into force at once.

2. In paragraph 2 of the Constitution (application to Jammu and Kashmir) Order, 1954: in sub-paragraph (22) (relating to the SEVENTH SCHEDULE), :

(i) in sub-clause (ii) of clause (a), the words and figures" the words and records" in entry 67" shall be omitted,

(ii) in clause (c), for sub-clause (iii), the following sub-clause shall be substituted, namely :

(iii) entry 3, entries 5 to 10 (both inclusive), entries 14,15,17, 20, 21, 27, 28, 29, 31, 27, 38, 41 and 44 shall be omitted.

(iii-a) for entry 42, the entry "42 Acquisition and requisitioning of property, so far as regards acquisition of any property covered by entry 67 of List

I or entry 40 of List III or of any human work of art which has artistic or esthetic value," shall be substituted; and,

240

290 and 291", the words and figure" and article 290" shall be substituted;

(3) in sub-paragraph (14) (relating to PART XIX) in clause (I), for the words of figures, "article 290 and 291", the words and figures," and article 290"

shall be substituted.

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(4) in sub-paragraph (22) (relating to SEVENTH SCHEDULE), in clause (c) :

(a) after sub-clause (i), the following sub-clause shall be inserted namely :

(i-a) for entry 2, the entry "2, Criminal procedure in so far as it relates to administration of oaths and taking of affidavits by diplomatic and consular

officers in any foreign country" shall be substituted;

(i-b) for entry 12, the entry "12 Evidence and oaths in so far as they relate to administration of oaths and taking of affidavits by diplomatic and consular

officers in any foreign country," shall be substituted;

(i-c) for entry 13, the entry "13 Civil Procedure in so far as it relates to administration of oaths and taking of affidavits by diplomatic and consular

officers in any foreign country", shall be substituted :

(b) in subclause (iii)

(i) for the words and figure "entries 2 and 2", the word and figure "entry 3" shall be substituted.

(ii) for the words figures and brackets "entries 12 to 15 (both inclusive), entries 17", the word and figures" entries 14, 15, 17" shall be substituted.

241

Published in the Gazette of India, (Extraordinary) Part II Sec. 3 (i), No. 203 dated August 2, 1972/

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Sravana 11, 1893

MINISTRY OF LAW AND JUSTICE

New Delhi the 2nd August, 1972

S.S.R. 370 (E) : The following Order made by the President is published for general

information :

C.O. 94

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) THIRD

AMENDMENT ORDER, 1972

In exercise of the powers conferred by clause (I) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State

of Jammu and Kashmir, is pleased to make the following Order :

1. (1) This Order may be called the Constitution (application to Jammu and Kashmir) Third Amendment Order, 1972. (2) It shall come into force at once.

2. In paragraph 2 of the Constitution (application to Jammu and Kashmir) Order, 1954 :

(1) in opening portion, the words, brackets and figures" and the constitution (twenty-fourth Amendment) Act, 1971" the words, brackets and figures, "the

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constitution (Twenty-fourth Amendment) Act, 1971 and the constitution (twenty-sixth Amendment) Act, 1971" shall be substituted :

(2) in sub-paragraph (7) (relating to PART XII), in clause (a) for the words and figures, "articles

242

(ii) inland air travel;

(iii) postal articles, including money orders, phonographs and telegrams."

(2) in sub-paragraph (22) (relating to the SEVENTH SCHEDULE), in clause (a), for item (vi), the following item shall be substituted namely : (iv) for entry

97), the following entry shall be substituted, namely : "97. Prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty

and territorial integrity of India or bringing about secession of a part of the territory of India or secession of a part of the territory of India from

the Union or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution; taxes on foreign travel by sea or air, on inland

air travel and on postal articles including money orders, phonograms and telegrams."

243

G.S.R. 275 (g) — The following Order made by the President is published for general

information :

C.O. 93

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) SECOND

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AMENDMENT ORDER, 1972

In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State

of Jammu and Kashmir, is pleased to make the following Order :

1. (1) This Order may be called the Constitution (application to Jammu and Kashmir) Second Amendment Order, 1972.

(2) It shall come into force at once. 2. In paragraph 2 of the Constitution (application to

Jammu and Kashmir) Order, 1954 : (1) in sub-paragraph (6) (relating to PART XI), for clause (b), the following clause shall be substituted namely :

(b) For article 248, the following article shall be substituted, namely :

"248. Residuary powers of legislation, Parliament has exclusive power to make any law with respect to :

(a) prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about

secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the India National Anthem and this Constitution;

and

(b) taxes on :

(i) foreign travel by sea or air;

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244

MINISTRY OF LAW AND COMPANY AFFAIRS

(Legislative Department)

Notification New Delhi the 26th June, 1974

G.S.R. 280 (E) : The following Order made by the President is published for general

information :

C.O. 98

THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) SECOND

AMENDMENT ORDER, 1974

In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State

of Jammu and Kashmir, is pleased to make the following Order :

1. (1) This Order may be called the Constitution (application to Jammu and Kashmir) Second Amendment Order, 1974. (2) It shall come into force at once.

2. In paragraph 2 of the Constitution (application to Jammu and Kashmir) Order, 1954 :

(i) In the opening portion, the words, brackets and figures" and the constitution (twenty-sixth Amendment) Act, 1971" the words, brackets and figures, "the

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constitution (Twenty-sixth Amendment) Act, 1972, and the constitution (thirtieth Amendment) Act, 1972" and section 2 of the constitution (Thirtieth-first

Amendment) Act, 1973 shall be substituted;

(ii) XXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

245

(iii) in sub-paragraph (5 (relating to PART XI), in clauses (c) and (d) shall be re-lettered as clauses (d) and (e) respectively and before clause (d) as

so re-lettered, the following clause shall be inserted namely : "(c) in article 133, after clause (1), the following clause shall be inserted, namely :

"(1A) The provisions of Section 3 of the constitution (Thirtieth Amendment) Act, 1972, shall apply in relation to the State of Jammu and Kashmir subject

to the modification that references therein to this Act" "the commencement of the this Act," "this Act had not been passed" and "as amended by the said

Act" shall be construed respectively as references to "the constitution (application to Jammu and Kashmir) Second Amendment order, 1974", "the commencement

of the said Order" "the said Order had not been made" and "as it stands after the commencement of the said Order."

(iv) in paragraph (24) (relating to the Ninth Schedule), entries 65, 66, 67, 68, 69, 70 and 71 shall be renumbered as entries 64A, 64B, 64C, 64D, 64E, 64F

and 64G respectively.

V.V. GIRI

President

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246

*The Constitution of Jammu and Kashmir

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 :

JUSTICE, social, economic and political;

Liberty, of thought, expression belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among us all;

FRATERNITY assuring the dignity of the individual and the unity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

* This text of this Constitution has been copied from the Constitution as published by the Govt. of Jammu&Kashmir.

247

PART I

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PRELIMINARY

1. Short title and commencement : (1) This Constitution may be called the Constitution of Jammu and Kashmir.

(2) This section and sections 2, 3, 4, 5, 6, 7, 8 and 158 shall come into force at once and the remaining provisions of this Constitution shall come into

force on the twenty-sixth day of January, 1957, which day is referred to in this Constitution as the commencement of this Constitution.

2. Definitions : (1) In this constitution, unless the context otherwise requires :

(a) "Constitution of India" means the Constitution of India as applicable in relation to this State;

(b) "existing law" means any law, Ordinance, order, bylaw, rule notification or regulation passed, made or issued before the commencement of this Constitution

by the Legislature or other competent authority or person having power to pass, make or issue such law, Ordinance, order, bye-law, rule, notification or

regulation;

(c) "Part" means a Part of this Constitution;

(d) "Schedule" means a Schedule to this Constitution; and

(e) "Taxation" includes the imposition of any tax or impost, whether general or local or special, and "tax" shall be construed accordingly.

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(2) Any reference in this Constitution to Acts or laws of the State Legislature shall be construed as including a reference to an Ordinance made by the

1Governor.

2[(3) Any reference in this Constitution to the Sadar-i-Riyasat shall, unless the context otherwise requires, be construed as a reference to the Governor.]

1 Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

2 Inserted by s. 3. ibid.

248

PART II

THE STATE

3. Relationship of the State with the Union of India : The State of Jammu and Kashmir is and shall be an integral part of the Union of India.

4. Territory of the State : The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty

or suzerainty of the Ruler of the State.

5. Extent of executive and legislative power of the State: The executive and legislative power of the State extends to all matters except those with respect

to which Parliament has power to make laws for the State under the provisions of the Constitution of India.

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PART III

PERMANENT RESIDENTS

6. Permanent residents : (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be permanent

resident of the State, if on the fourteenth day of May, 1954 :

(a) he was a State Subject of Class I or of Class II; or

(b) Having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less then ten years prior to that date.

(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of

March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued

by or under the authority of any law made

249

1 Composite State

by the State Legislature shall on such return be a permanent resident of the State. (3) In this section, the expression "State Subject of Class I or of

Class II" shall have the same meaning as in State Notification No. I-L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated

the twenty-seventh June, 1932.

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7. Construction of references to State Subjects in existing laws : Unless the context otherwise requires, all references in any existing law to heredity

State Subject or to State Subject of Class I or of Class II or of Class III shall be construed as references to permanent residents of the State.

8. Legislature to define permanent resident : Nothing in the foregoing provisions of this part shall derogate from the power of the State Legislature to

make any law defining the classes of persons who are, or shall be, permanent residents of the State.

9. Special provision for Bills relating to permanent residents : A Bill making provision for any of the following matters, namely :

(a) defining or altering the definition of the classes of persons who are, or shall be, permanent residents of the State;

(b) conferring on permanent residents any special rights or privileges;

(c) regulating or modifying any special rights or privileges enjoyed by permanent residents;

shall be deemed to be passed by either House of Legislature only if it is passed be a majority of not less than two-thirds of the total membership of that

House.

10. Rights of the Permanent residents : The permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India.

PART IV

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DIRECTIVE PRINCIPLES OF STATE POLICY

11. Definition : In this Part, unless the context otherwise requires, the State includes the Government and the

250

Legislature of the State and all local or other authorities within the territory of the State or under the control of the Government of the State.

12. Application of the principles contained in this Part : The provisions contained in this Part shall not be enforceable by any court, but the principles

therein laid down nevertheless fundamental in the governance of the State and it shall be the duty of the State to apply these principles in making laws.

13. State to establish a socialist order of society for the promotion of welfare of the people : The prime object of the State consistent with the ideals

and objectives of the freedom movement envisaged in "New Kashmir" shall be the promotion of the welfare of the mass of the people by establishing and preserving

a socialist order of society wherein all exploitation of man has been abolished and wherein justice-social, economic and political shall inform all the

institutions of national life.

14. Economy of the State to be developed in a planned manner : Consistently with the objectives outlined in the foregoing section, the State shall develop

in a planned manner the productive forces of the country with a view to enriching the material and culture life of the people and foster and protect :

(a) the public sector where the means of production are owned by the State;

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(b) the co-operative sector where the means of production are co-operatively owned by individuals or group of individuals; and

(c) the private sector where the means of production are owned by an individual or a corporation employing labour; provided that the operation of this sector

is not allowed to result in the concentration of wealth or of the means of production to the common detriment.

15. State to ensure speedly improvement in standard of living of rural masses : The State shall endeavour to organise and develop agriculture and animal

husbandry by bringing to the aid of the cultivator the benefits of modern and scientific research and techniques so as to ensure a speedy

251

improvement in the standard of living as also the prosperity of the rural masses.

16. Organisation of village Panchayats : The State shall take steps to organise village Panchayats and endow them with such powers and authority as may

be necessary to enable them to function as units of self-government.

17. State to take certain steps for promoting crafts and cottage industries : The State shall in order to rehabilitate, guide and promote the renowned crafts

and cottage industries of the State, initiate and execute well considered programmes for refining and modernising techniques and modes of production, including

the employment of cheap power so that unnecessary drudgery and toil of the workers are eliminated and the artistic value of the products enhanced, while

the fullest scope is provided for the encouragement and development of individual talent and initiative.

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18. Separation of judiciary from executive : The State shall take steps to separate the judiciary from the executive in the public services, and shall seek

to secure a judicial system which is humane, cheap, certain, objective and impartial whereby justice shall be done and seem to be done and shall further

strive to ensure efficiency, impartiality and incorruptibility of its various organs of justice, administration and public utility.

19. Right to work and to public assistance in certain cases : The State shall, within the limits of its economic capacity and development, make effective

provision for securing :

(a) that all permanent residents, men and women equally, have the right to work, that is, the right to receive guaranteed work with payment for labour in

accordance with its quantity and quality subject to a basic minimum and maximum wage established by law;

(b) that the health and strength of workers, men and women and the tender-age of children are not abused and that permanent residents are not forced by

economic necessity to enter avocations unsuited to their sex, age or strength;

252

(c) that all workers, agricultural, industrial or otherwise, have reasonable, just and humane conditions of work with full enjoyment of leisure and social

and cultural opportunities;

(d) that all permanent residents have adequate maintenance in old age as well as in the event of sickness, disablement, unemployment and other cases of

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undeserved want by providing social insurance, medical aid, hospitals, sanatoria and health resorts at State expense.

20. Rights of free and compulsory education in certain cases : The State shall endeavour :

(a) to secure to every permanent resident the right to free education up to the University standard;

(b) to provide, within a period of ten years from the commencement of this Constitution, compulsory education for all children until they complete the age

of fourteen years; and

(c) to ensure to all workers and employees adequate facilities for adult education and part-time technical, professional and vocational courses.

21. Rights of children : The State shall strive to secure:

(a) to all children the right to happy childhood with adequate medical care and attention; and

(b) to all children any youth equal opportunities in education and employment, protection against exploitation and against moral or material abandonment.

22. Rights of woman : The State shall endeavour to secure to all women :

(a) the right to equal pay for equal work;

(b) the right to maternity benefits as well as adequate medical care in all employment's.

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(c) the right to reasonable maintenance , extending to cases of married woman who have been divorced or abandoned;

(d) the right to full equality in all social, educational political and legal matters;

(e) special protection against discourtesy, defamation, and their forms of misconduct;

253

23. Protection of educational, material and cultural interests of socially and economically backward sections : The State shall guarantee to the socially

and educationally backward, sections of the people special care in the promotion of their educational, material and cultural interests and protection against

social injustice.

24. Duty of the State to improve public health : The State shall make every effort to safeguard and promote the health of the people by advancing public

hygiene and by prevention of disease through sanitation, pest and vermin control propaganda and other measures, and by ensuring widespread, efficient and

free medical services throughout the State and, with particular emphasis, in its remote and backward regions.

25. Duty of the State to foster equality and secularism : The State shall combat ignorance, superstition, fanaticism, communalism, racialism, cultural backwardness

and shall seek to foster brotherhood and equality among all communities under the aegis of a Secular State.

PART V

THE EXECUTIVE

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The Governor

26. Head of State : (1) The Head of the State shall be designated as the Governor.

(2) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers sub ordinate to him

in accordance with this Constitution.

(3) Nothing in this section shall —

(a) be deemed to transfer to the 3Governor any

1,2,3 Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

254

functions conferred by any existing law on any other authority; or

(b) prevent the State Legislature from conferring by law functions on any authority subordinate to the 1Governor.

27. Appointment of Governor : The Governor shall be appointed by the President by warrant under his hand and seal :

Provided that the person holding office as Sadar-i-Riyasat immediately before the commencement of the Constitution of Jammu and Kashmir (Sixth Amendment)

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Act, 1965, shall on such commencement be the Governor and shall, subject to the other provisions of this Constitution, continue to hold office as Governor

until the remaining period of his term for which he was elected as Sadar-i-Riyasat expires.

28. Term of Office : (1) The *Governor shall hold office during the pleasure of the President.

(2) The *Governor may, by writing under his hand addressed to the President, resign his office.

(3) Subject to foregoing provisions of this section, the Governor shall hold office for a term of five years from the date on which he enters upon his office

:

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

229. Qualifications for appointment as Governor : No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed

the age of thirty years.

30. Conditions of Office : (1) The Governor shall not be a member of either House of Legislature and if a member of either House be 3[appointed] as Governor,

he shall be

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2,

1 Substituted by s. 4 ibid.

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2 Substituted by s. 5 ibid.

3 Substituted for "elected and recognised" by s. 6 ibid.

255

deemed to have vacated his seat in the House on the date on which he enters upon his office as *Governor.

(2) The *Governor shall not hold any other office of profit.

(3) The *Governor shall be entitled to such emoluments, allowances and privileges as are specified in the Second Schedule.

(4) The emoluments and allowances of the *Governor shall not be diminished during his term of office.

131. Oath of Office : The Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe

in the presence of the Chief Justice of the High Court or, in his absence, the senior most Judge of that Court available an oath or affirmation in the

following form, that is to say :

A.B. do swear in the name of God solemnly affirm that I will faithfully execute the office of Governor (or discharge the functions of the Governor) of Jammu

and Kashmir and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and

well-being of the people of the State.

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232. Omitted.

333. Discharge of the functions of the Governor in certain contingencies : The president may make such provision as he thinks fit for the discharge of functions

of the Governor in any contingency not provided for in his Part.

34. Power to grant pardons, reprieves, etc. : The *Governor shall have the power to grant pardons, reprieves respites or remissions of punishment or to

suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the

State extends.

1 Substituted by s. 7 ibid.

2 Section 32 omitted by s. 8 ibid.

3 Substituted by s. 9 ibid.

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

256

The Council of Ministers

35. Council of Ministers to aid and advise the *Governor. (1) There shall be a Council of Ministers with the [Chief Minister] at the head to aid and advice

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the *Governor in the exercise of the his functions.

(2) All functions of the *Governor except those under Sections 36, 38 and 92 shall be exercised by him only on the advice of the Council of Ministers.

(3) The question whether any, and if so what, advice was tendered by Ministers to the *Governor shall not be enquired into in any court.

36. Appointment of Ministers : The 1[Chief Minister] shall be appointed by the "Governor and the other Ministers shall be appointed by the Governor on the

advice of the [Chief Minister].

37. Ministers' responsibility to the Legislature : (1) The Council of Ministers shall be collectively responsible to the Legislature Assembly.

(2) A Minister who for any period of six consecutive months is not a member of either House of Legislature shall upon expiry of that period cease to be

a Minister.

38. Deputy Ministers : The *Governor may on the advice of the [Chief Minister] appoint from amongst the members of either House of Legislature such number

of Deputy Ministers as may be necessary.

39. Tenure of Office : The Ministers and the Deputy Ministers shall hold office during the pleasure of the *Governor.

40. Oaths of Office and Secrecy : Before a Minister or a Deputy Minister enters upon his office, the *Governor or, in his absence, any person authorised

by him, shall administer to the Minister or the Deputy Minister the oaths of office

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* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 2965, s. 2. 1 Substituted far "Prime Minister" by s.

2 ibid.

257

and of secrecy according to the form set out for the purpose in the Fifth Schedule.

41. Salaries and allowances of Ministers and Deputy Ministers : The salaries and allowances of Ministers and Deputy Ministers shall be such as the Legislature

may from time to time by law determine and, until so determined, shall be such as are payable respectively to the Ministers and the Deputy Minister under

the Jammu and Kashmir Ministers' Salaries Act, 1956 (Act VI of 1956), the Jammu and Kashmir Ministers' Travelling Allowances Rules for the time being in

force, and the Jammu and Kashmir Deputy Ministers Salaries and Allowances Act, S. 2010 (Act VIII of S. 2010).

The Advocate General

42. Advocate General for the State : (1) The *Governor shall appoint a person, who is qualified to be appointed a Judge of the High Court, to be Advocate

General for the State.

(2) It shall be the duty of the Advocate General to give advice to the Government upon such legal matters and to perform such other duties of a legal character,

as may from time to time be referred or assigned to him by the Government, and to discharge the functions conferred on him by or under this Constitution

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or any other law for the time being in force.

(3) In performance of his duties, the Advocate General shall have the right of audience in all courts in the State.

(4) The Advocate General shall hold office during the pleasure of the *Governor and receive such remuneration as the *Governor may determine.

Conduct of Government Business

43. Rule of Business : The 'Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation

among Ministers of the said business.

Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

258

44. Duties of Chief Minister : It shall be the duty, of the [Chief Minister] :

(a) to communicate to the *Governor all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for

legislation;

(b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the *Governor may call for;

and

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(c) if the *Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister

but which has not been considered by the Council.

45. Form of orders and instruments and their authentication:

(1) All executive action of the Government shall be expressed to be taken in the name of the *Governor or of the Government of Jammu and Kashmir.

(2) Order and other instruments made and executed in the name of the *Governor or of the Government of Jammu and Kashmir shall be authenticated in such

manner as may be specified in the rules to be made by the *Governor and the validity of an order or instrument which is so authenticated shall not be called

in question on the ground that it is not an order or instrument made or executed by the *Governor or, as the case may be, by the Government of Jammu and

Kashmir.

PART VI

THE STATE LEGISLATURE

Composition of the State Legislature

46. Legislature for the State : There shall be a Legislature for the State which shall consist of the *Governor and

1 Substituted for "Prime Minister" by s. 2 ibid.

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* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

259

two Houses to be known respectively as the Legislature Assembly and the Legislature Council.

47. Composition of Legislature Assembly :

(1) The Legislative Assembly shall consist of one hundred members chosen by the direct election from territorial constituencies in the State: Provided that

the *Governor may, if he is of opinion that women are not adequately represented in the Assembly, nominate not more than two women to be members thereof.

(2) For the purposes of sub-section (1), the State shall be divided into territorial constituencies in such a manner that the ratio between the population

of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State. EXPLANATION : In this sub-section,

the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published.

(3) Upon the completion of each census, the number, extent and boundaries of the territorial constituencies shall be readjusted by such authority and in

such manner as the Legislature may by law determine :

Provided that such readjustment shall not effect representation in the Legislative Assembly until the dissolution of the then existing Assembly.

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48. Provision relating to Pakistan occupied territory : Notwithstanding anything contained in Section 47, until the area of the State under the occupation

of Pakistan ceases to be so occupied and the people residing in that area elect their representatives —

(a) twenty-five seats in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly;

and

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

260

(b) the said area shall be excluded in delimiting the territorial Constituencies under Section 47.

49. Reservation of seats for Scheduled Castes : (I) There shall be reserved in the Legislative Assembly for the Scheduled Castes in the State a number of

seats which shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes

bears to the population of the State.

EXPLANATION : In this sub-section :

(a) "population" has the same meaning as in sub-section (2) of Section 47; and

(b) "Scheduled Castes" means the castes, races or tribes or part of, or groups within, castes, races or tribes which are for the purposes of the Constitution

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of India deemed to be Scheduled Castes in relation to the State under the provisions of Article 341 of that Constitution.

(2) The provisions of sub-section (1) shall cease to have effect on the expiration of a period of 1[twenty-three years] from the commencement of this Constitution

:

Provided that such cesser shall not effect any representation in the Legislative Assembly until the dissolution of the then existing Assembly.

50. Composition of Legislative Council : (1) Legislative Council shall consist of thirty-six members, chosen in the manner provided in this section.

(2) Eleven members shall be elected by the members of the Legislative Assembly from amongst persons who are residents of the Province of Kashmir and are

not members of the Legislative Assembly:

Provided that of the members so elected, at least one shall be a resident of Tehsil Ladakh and at least one shall be a resident of Tehsil Kargil.

1 Substituted by the Constitution of jammu and Kashmir (Eleventh Amendment) Act, 2970.

261

(3) Eleven members shall be elected by the members of the Legislative Assembly from amongst persons who are residents of the Province of Jammu and are not

members of the Legislative Assembly :

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Provided that of the members so elected, at least one shall be a resident of Doda District and at least one shall be a resident of Poonch District.

(4) One member shall be elected by each of the following electorates, namely :

(a) the members of municipal council, town area committees and notified area committees in the Province of Kashmir;

(b) the members of municipal council, town area committees and notified area committees in the Province of Jammu;

1xxx

(5) Two members shall be elected by each of the following electorates, namely :

(a) the members of the Panchayats and such other local bodies in the Province of Kashmir as the *Governor may by order specify;

(b) the members of the Panchayats and such other local bodies in the Province of Jammu as the *Governor may by order specify.

(6) 2[Eight] members shall be nominated by *Governor, not more than three of whom shall be persons belonging to any of the socially or economically backward

classes in the State, and the others shall be persons having special knowledge or practical experience in respect of matters such as literature, science,

art, cooperative movement and social service.

1 Clauses (c) and (d) of sub-section (4) of section 50 omitted by the Constitution of Jammu and Kashmir (Fifth Amendment) Act, 1963, s. 2.

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* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2

2 Substituted by s. 2 ibid

262

(7) Elections under sub-sections (2) and (3) shall be held in accordance with the system of proportional representation by means of the single transferable

vote.

General Provision

51. Qualifications for membership of the Legislature : A person shall not be qualified to be chosen to fill a seat in the Legislature unless he :

(a) is a permanent resident of the State, and makes and subscribes before some person authorised in that behalf by the Election Commission of India an oath

or affirmation according to the form set out for the purpose in the Fifth Schedule;

(b) is, in the case of seat in the Legislative Assembly, not less than twenty-five years of age, and in the case of a seat in the Legislative Council, not

less than thirty years of age; and

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Legislature.

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52. Duration of Legislature : (1) The Legislative Assembly, unless sooner dissolved, shall continue for five years from the date appointed for its first

meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly :

Provided that the said period may, while a Proclamation of Emergency issued under Article 352 of the Constitution of India is in operation, be extended

by the State Legislature by law for period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation

has ceased to operate. (2) The Legislature Council shall not be subject to dissolution but as nearly as possible one-third of the members thereof shall

retire, as soon as

* Substituted by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 10.

263

may be, on the expiration of every second year in accordance with the provisions made in that behalf by Legislature by law.

53. Session of the Legislature, prorogation and dissolution: (1) The *Governor shall from time to time summon each House of the Legislature to meet at such

time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting

in the next session.

(2) The *Governor may from time to time :

(a) Prorogue the Houses or either House;

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(b) Dissolve the Legislative Assembly.

54. Right of Governor to address and send message to the House or Houses : (1) The *Governor may address either House of Legislature, or both Houses assembled

together, and may for that purpose require the attendance of members.

(2) The *Governor may send messages to either of the House, whether with respect to a Bill pending in the Legislature or otherwise, and in a House to which

any message is sent shall with all convenient, despatch, consider any matter required by the message to be taken into consideration.

55. Special address by the Governor : (1) At the commencement of the first session after each general election to the Legislative Assembly and at the commencement

of the first session of each year, the *Governor shall address both Houses of Legislature assembled together and inform the Legislature of the causes of

its summons.

(2) Provision shall be made by the rules regulating the procedure of either House for the allotment of time for discussion of the matters referred to in

such address.

56. Rights of Ministers and Advocate General in respect of both the Houses : Every Minister and the Advocate General

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

264

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shall have the right to speak in, and otherwise to take part in the proceedings of, both Houses and to speak in, and otherwise to take part in the proceedings

of, any Committee of the Legislature of which he may be named as a member, but shall not, by virtue of this section, be entitled to vote.

Officers of the State Legislature

57. The Speaker and Deputy Speaker of the Legislative Assembly : The Legislative Assembly shall, as soon as may be, choose two members of the Assembly to

be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another

member, to be Speaker of Deputy Speaker, as the case may be.

58. Vacation and resignation of, and removal from, the offices of the Speaker and Deputy Speaker: A member holding office as Speaker or Deputy Speaker of

the Legislative Assembly :

(a) shall vacate his office if he ceases to be a member of the Assembly;

(b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker,

to the Speaker, resign his office; and

(c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly :

Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has given of the intention to move the resolution

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:

Provided further that whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly

after dissolution.

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

265

59. Power of the Deputy Speaker or other person to perform the duties of the office of or to act as Speaker : (1) While the office of Speaker is vacant,

the duties of the office shall be performed by the Deputy Speaker or if the office of the Deputy Speaker is also vacant, by such member of the Assembly

as the *Governor may appoint for the purpose.

(2) During the absence of the Speaker from any sitting of the Assembly the Deputy Speaker or, if he is also absent, such person as may be determined by

the rules of procedure of the Assembly, or, if no such person is present, such other person as may be determined by the Assembly, shall act as Speaker.

60. The Speaker and the Deputy Speaker not to preside while a resolution for his removal from office is under consideration : (1) At any sitting of the

Legislative Assembly, while any resolution, for the removal of the Speaker from his office is under consideration, the Speaker or while any resolution

for the removal of the Deputy Speaker from his office is under consideration, the Deputy Speaker, shall not, though he is present, preside, and the provisions

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of sub-section (2) of Section 59 shall apply in relation to every such sitting as they apply in relation to a sitting from which the Speaker or, as the

case my be, the Deputy Speaker, is absent.

(2) The Speaker shall have the right to speak in, and otherwise to take part in the proceedings of, the Legislative Assembly while any resolution for his

removal from office is under consideration in the Assembly and shall, notwithstanding anything in Section 67, be entitled to vote only in the first instance

on such resolution or on any other matter during such proceedings but not in the case of an equality of votes.

61. The Chairman and Deputy Chairman of the Legislative Council: (1) The Legislative Council shall, as soon as possible may be choose two members of the

Council to be respectively

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

266

Chairman and Deputy Chairman of and, so often as the office of Chairman or Deputy Chairman becomes vacant the Council shall choose another member to be

Chairman or Deputy Chairman, as the case may be.

(2) The provisions of Section 58, 59, 60 shall apply in relation to the Chairman and Deputy Chairman of the Legislative Council with the substitution of

the words "Chairman" and "Council" for the words "Speaker" and "Assembly" respectively, wherever they occur in those provisions, and the ommission of the

further proviso to Section 58.

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62. Salaries and allowances of the Speaker and Deputy Speaker and the Chairman and Deputy Chairman : There shall be paid to the Speaker and the Deputy Speaker

of the Legislative Assembly and to the Chairman and the Deputy Chairman of the Legislative Council, such salaries and allowances as may be respectively

fixed by Legislature by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the Third Schedule.

63. Secretariat of the Legislature : (1) Each House of the Legislature shall have a separate secretariat staff :

Provided that nothing in this sub-section shall be construed as preventing the creation of posts common to both Houses.

(2) The Legislature may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of each House.

(3) Until provision is made by the Legislature under sub-section (2), the *Governor may, after consultation with the Speaker of the Legislative Assembly

or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed,

to the secretarial staff of the Assembly or the Council, and any rules

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

267

so made shall have effect subject to the provisions of any law made under the said sub-section.

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Conduct of Business

64. Oath or affirmation by members : Every member of the Legislative Assembly or the Legislative Council shall, before taking his seat, make and subscribe

before the *Governor or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Fifth Schedule.

65. Quorum : Save as otherwise provided by the rules of procedure of the House, the quorum to constitute a meeting of the Legislative Assembly and of the

Legislative Council shall be twenty and ten respectively.

66. Power of Houses to act notwithstanding Vacancies : A House of the Legislature shall have power to act notwithstanding any vacancy in the Membership

thereof, and any proceedings in the Legislature shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled

so to do sat or voted or otherwise took part in the proceedings.

67. Voting in the Houses : (1) Save as otherwise provided in this Constitution, all questions at any sitting of a House of the Legislature shall be determined

by a majority of votes of the members present and voting, other than the Speaker or Chairman, or person acting as such.

(2) The Speaker or Chairman or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an

equality of votes.

Disqualifications of Members

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68. Vacation of Seats : (1) No person shall be a member of both Houses of the Legislature and provision shall be made by Legislature by law for the vacation

by a person, who is chosen a member of both Houses, of his seat in one House or the other.

268

(2) If a member of a House of the Legislature resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his

seat shall thereupon become vacant.

(3) If for a period of sixty days a member of a House of the Legislature is without permission of the House absent from all meetings thereof, the House

may declare his seat vacant :

Provided that in computing the said period of sixty days no account shall be taken of —

(a) such absence caused by reason beyond his control; or

(b) any period during which the House -is prorogued or is adjourned for more than four consecutive days.

69 Disqualification's for membership : (1) A person shall be disqualified for being chosen and for being a member of the Legislative Assembly or Legislative

Council :

(a) if he holds any office of profit under the Government of India or the State Government or any other State Government within the Union of India, other

than an office declared by Legislature by law not to disqualify its holder;

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(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a permanent resident of the State or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance

of adherence to a foreign State;

(e) if he is so disqualified by or under any law made by the Legislature.

(2) For the purposes of this section, a person shall not be deemed to hold an office of profit under the Government of India, the State Government or any

other State Government within the Union of India, by reason only that he is a Minister, or a Deputy Minister.

269

70. Decision on questions as to disqualification's of members : (1) If it is represented to the Speaker or the Chairman that a member of the Legislative

Assembly or, as the case may be, of the Legislative Council is disqualified for being such a member under the provisions of Section 69, or was so disqualified

at any time since being chosen as a member, and the member does not admit that he is or was so disqualified, the question shall be referred to the High

Court for decision and its decision shall be final :

Provided that where the disqualification in question arises from circumstances which subsisted at the time of his being chosen as such member, no such representation

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as aforesaid shall be entertained :

(a) unless it is made after the expiration of the period prescribed by law for presenting an election petition calling in question the election of the member,

and

(b) if such an election petition is pending or has been tried, unless the Speaker or Chairman, as the case may be, is satisfied that the question of the

member's disqualification by reason of those circumstances has not been raised or, as the case may be, was not raised, in the proceedings on the election

petition.

(2) Where on a representation made under sub-section (1) the member admits that he is or was disqualified under the provision of section 69, or whereon

a reference made under that sub-section the High Court decided that the member is or was so disqualified, his seat shall thereupon become vacant.

71. Penalty for sitting and voting before making Oath or affirmation when not qualified or when disqualified: If a person sits or votes as a member of the

Legislative Assembly or the Legislative Council before he has complied with the requirements of Section 64 or when he knows that he is not qualified or

that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by the Legislature, he shall be

liable in respect

270

of each day on which he so sits or votes to a penalty of one hundred rupees to be recovered as a debt due to the State.

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Powers, Privileges and Immunities of the State Legislature and its Members

72. Powers, Privileges, etc., of the Houses of Legislature and of the members and committees thereof: (1) Subject to the provisions of this Constitution

and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature.

(2) No member of the Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature

or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of a House of the Legislature of any

report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of a House of the Legislature and of the members and the committees of a House of the Legislature

shall be such as may from time to time be defined by Legislature by law, and until so defined, shall be those of the Parliament of India and of its members

and committees.

(4) The provisions of sub-section (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and

otherwise to take part in the proceedings of, a House of the Legislature or any committee thereof as they apply in relation to members of that Legislature.

73. Salaries and allowances of members. Members of the Legislative Assembly and the Legislative Council shall be entitled to receive such salaries and allowances

as may from time to time be determined by Legislature by law and, until provision in that respect is so made, salaries and allowances at such rates and

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upon such conditions as were immediately

271

before the commencement of this Constitution applicable in the case of members of the Constituent Assembly.

Legislative Procedure

74. Provision as to introduction and passing of Bills : (1) Subject to the provisions of Section 76 and 84 with respect to Money Bills and other Financial

Bills, a Bill may originate in either House of the Legislature.

(2) Subject to the provisions of sections 75 and 76 a Bill shall not be deemed to have been passed by the Legislature unless it has been agreed to by both

Houses, either without amendment or with such amendments only as are agreed to by both Houses.

(3) A Bill pending in the Legislature shall not lapse by reason of the prorogation of the House or Houses thereof.

(4) A Bill pending in the Legislative Council which has not been passed by the Legislative Assembly shall not lapse on dissolution of the Assembly.

(5) A Bill which is pending in the Legislative Assembly, or which having been passed by the Legislative Assembly is pending in the Legislative Council,

shall lapse on a dissolution of the Assembly.

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75. Restriction on powers of Legislative Council as to Bills other than Money Bills : (1) If after a Bill has been passed by the Legislative Assembly and

transmitted to the Legislative Council—

(a) the Bill is rejected by the Council; or

(b) more than three months elapse from the date on which the Bill is laid before the Council without the Bill being passed by it; or

(c) the Bill is passed by the Council with amendments which the Legislative Assembly does not agree;

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

272

The bill shall be deemed to have been passed by the houses of legislature in the form in which it was asked by the Legislative Assembly in the second time

with such amendments, if any, as have been made or suggested by the Legislative Council and agreed to by the Legislative Assembly. (3) Nothing in the section

shall apply to a money bill.

76. Special procedure in respect of money bills :

(1) Money bill shall not be introduced in the Legislative Council.

(2) After a Money Bill has been passed by the Legislative Assembly, it shall be transmitted to the Legislative Council for recommendations and the Legislative

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Council shall within a period of fourteen days from the date of its receipt of the bill return, the bill to the Legislative Assembly with its recommendations

and Legislative Assembly may thereupon either accept or reject all or any of the recommendations of the Legislative Council.

(3) If the Legislature Assembly accepts any of the recommendations of the Legislative Council, the Money Bill shall be deemed to have been passed by both

Houses with the amendments recommended by the Legislative Council and accepted by the Legislative Assembly.

(4) If the Legislative Assembly does not accept any of the recommendations of the Legislative Council, the Money Bill shall be deemed to have been passed

by both Houses in the form in which it was passed by the Legislative Assembly without any of the amendments recommended by the Legislative Council.

(5) If a Money Bill passed by the Legislative Assembly and transmitted to the Legislative Council for its recommendations is not returned to the Legislative

Assembly within the said period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the form

in which it was passed by the Legislative Assembly—

273

77. Definition of "Money Bill": (1) For the purposes of this Part, Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all

or any of other following matters, namely—

(a) the imposition, abolition, remission, alteration or regulation of any tax;

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(b) the regulation of the borrowing of money of the giving of any guarantee by the State, or the amendment of the law with respect to any financial obligations

undertaken or to be undertaken by the State;

(c) the custody of the Consolidated Fund or the Contingency Fund of the State, the payment of money into or the withdrawal of money from any such Fund;

(d) the appropriation of money out of the Consolidated Fund of the State;

(e) the declaring of any expenditure to be expenditure charged on the consolidated Fund of the State, or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of the State or the public account of the State or the custody or issue of such money; or

(g) any matter incidental to any of the matters specified in clauses (a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand

or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation

of any tax by any local authority or body for local purposes.

(3) If any question arises whether a Bill introduced in the Legislature is a Money Bill or not, the decision of the Speaker of the Legislative Assembly

thereon shall be final.

274

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(4) There shall be endorsed on every Money Bill when it is transmitted to the Legislative Council under Section 76 and when it is presented to the *Governor

for assent under Section 78, the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.

78. Assent to Bills : When a Bill has been passed by both Houses of the Legislature, it shall be presented to the *Governor and the *Governor shall declare

either that he assents to the Bill or that he withholds assent therefrom:

Provided that the *Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together

with a message requesting that the Houses will reconsider the Bill or any specified provision thereof and, in particular, will consider the desirability

of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the Houses shall reconsider the Bill accordingly

and if the Bill is passed again by the Houses with or without amendment and presented to the *Governor for assent, the *Governor shall not withhold assent

therefrom.

Procedure in Financial Matters

79. Annual Financial Statement. (1) The *Governor shall in respect of every financial year cause to be laid before both Houses of the Legislature a statement

of the estimated receipts and expenditure of the State for that year, in this Part referred to as the "annual financial statement."

(2) The estimates of expenditure embodied in the annual financial statement shall show separately:-

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(a) the sums "required to meet expenditure described by this Constitution as expenditure charged upon the Consolidated Fund of the State; and

(b) the sums required to meet other expenditure proposed to be made from the Consolidated Fund of the State;

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

275

and shall distinguish expenditure on revenue account from other expenditure.

(3) The following expenditure shall be expenditure charged on the Consolidated Fund of the State—

(a) the emoluments and allowances of the *Governor and other expenditure relating to his office;

(b) the salaries and allowances of the Speaker and the Deputy Speaker of the Legislative Assembly and of the Chairman and the Deputy Chairman of the Legislative

Council;

(c) debt charges for which the State is liable including interest, sinking fund charges and redemption charges, and other expenditure relating to the raising

of the loans and the service and redemption of debt;

(d) expenditure in respect of the salaries and allowances of the Judges of the High Court;

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(e) any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal;

(f) any other expenditure declared by this Constitution, or by Legislature by law, to be so charged.

80. Procedure in Legislature with respect to estimates : (1) So much of the estimates as relates to expenditure charged upon the Consolidated Fund of the

State shall not be submitted to the vote of the Legislative Assembly, but nothing in this sub-section shall be construed as preventing the discussion in

the Legislature of those estimates.

(2) So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly and the

Legislative Assembly shall have power to assent or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount

specified therein.

276

Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

(3) No demand for a grant shall be made except on the recommendation of the *Governor.

81. Appropriation Bills : (1) As soon as may be after the grants under Section 80 have been made by the Assembly, there shall be introduced a Bill to provide

for the appropriation out of the Consolidated Fund of the Sate of all moneys required to meet—

(a) the grants so made by Assembly; and

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(b) the expenditure charged on the Consolidated Fund of the State but not exceeding in any case the amount shown in the statement previously laid before

the House.

(2) No amendment shall be proposed to any such Bill in either House of the Legislature which will have the effect of varying the amount or altering the

destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated Fund of the State, and the decision of the person

presiding as to whether an amendment is inadmissible under this sub-section shall be final.

(3) Subject to the provisions of sections 82 and 83, no money shall be withdrawn from the Consolidated Fund of the State except under appropriation made

by law passed in accordance with the provisions of this section.

82. Supplementary, additional or excess grants : (1) The *Governor shall—

(a) if the amount authorised by any law made in accordance with the provision of section 81 to be expended for a particular service for the current financial

year is found to be insufficient for the purposes of that year or when a need has arisen during the current financial year for supplementary or additional

expenditure upon some new service not contemplated in the annual financial statement for that year; or

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

277

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(b) if any money has been spent on any service during a financial year in excess of the amount granted for that service and for that year, cause to be laid

before the Houses of the Legislature another statement showing the estimated amount of that expenditure or cause to be presented to the Legislative Assembly

a demand for such excess, as the case may be.

(2) The provisions of section 79, 80 and 81 shall have effect in relation to any such statement and expenditure or demand and also to any law to be made

authorising the appropriation of moneys out of the Consolidated Fund of the State to meet such expenditure or the grant in respect of such demand as they

have effect in relation to the annual financial statement and the expenditure mentioned therein or to a demand for a grant and the law to be made for the

authorisation of appropriation of moneys out of the Consolidated Fund of the State to meet such expenditure or grant. 83. Votes on account, votes of credit

and exceptional grants:

(1) Notwithstanding anything in the foregoing provisions of this Part, the Legislative Assembly shall have power—

(a) to make any grant in advance in respect of the estimated expenditure for a part of any financial year pending the completion of the procedure prescribed

in Section 80 for the voting of such grant and the passing of the law in accordance with the provisions of section 81 in relation to that expenditure;

(b) to make a grant for meeting an unexpected demand upon the resources of the State when on account of the magnitude or the indefinite character of the

services the demand cannot be stated with the details ordinarily given in an annual financial statement;

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

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278

(c) to make an exceptional grant which forms no part of the current service of any financial year;

and the Legislature shall have power to authorise by law the withdrawal of moneys from the Consolidated Fund of the State for the purposes for which the

said grants are made. (2) The provisions of sections 80 and 81 shall have effect in relation to the making of any grant under sub-section (1) and to any

law to be made under that sub-section as they have effect in relation to the making of a grant with regard to any expenditure mentioned in the annual financial

statement and the law to be made for the authorisation of appropriation of moneys out of the Consolidated Fund of the State to meet such expenditure.

84. Special provisions as to financial Bills : (1) A Bill or amendment making provision for any of the matters specified in clauses (a) to (f) of sub-section

(1) of section 77 shall not be introduced or moved except on the recommendation of the *Governor and a Bill making such provision shall not be introduced

in the Legislative Council :

Provided that no recommendation shall be required under this sub-section for the moving of an amendment making provision for the reduction or abolition

of any tax.

(2) A Bill or amendment shall not be deemed to make provision for any of the matters aforesaid by reason only that it provides for the imposition of fines

or other pecuniary penalties, or for the demand or payment of fees for licenses or fees for services rendered, or by reason that it provides for the imposition,

abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.

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(3) A Bill which, if enacted and brought into operation, would involve expenditure from the Con-

* Substituted for "Sadar-i-Riyasat" by the Constitution of jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

279

solidated Fund of the State shall not be passed by a House of the Legislature unless the *Governor has recommended to that House the consideration of the

Bill.

Procedure Generally

85. Rules of procedure : (1) A House of the Legislature may make rules for regulating, subject to the provisions of this Constitution, its procedure and

the conduct of its business.

(2) Until rules are made under sub-section (1) the rules of procedure and standing orders in force immediately before the commencement of this Constitution

with respect to the Constituent Assembly while discharging the functions of the Legislative Assembly shall have effect in relation to each House of the

Legislature subject to such modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly or the Chairman of the Legislative

Council, as the case may be.

(3) The *Governor, after consultation with the Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the

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procedure with respect to communications between the two Houses.

86. Regulation by law of procedure in the Legislature in relation to financial business : The Legislature may, for the purpose of the timely completion

of financial business, regulate by law, the procedure of, and the conduct of business in, the Houses of the Legislature in relation to any financial matter

or to any Bill for the appropriation of moneys out of the Consolidated Fund of the State and, if and so far as any provision of any law so made is inconsistent

with any rule made by either House of the Legislature under sub-section (1) of section 85 or with any rule or standing order having effect in relation

to either House of the Legislature under sub-section (2) of that section, such provisions shall prevail.

87. Language to be used in the Legislature : (1) Business in the Legislature shall be transacted in Urdu or in English:

Provided that the Speaker of the Legislative Assembly or the Chairman of the Legislative Council

280

or person acting as such, as the case may be, may permit any member to address the House in Hindi, or if he cannot adequately express himself in any of

the aforesaid languages, to address the House in his mother-tongue.

(2) The official record of the proceedings in the Legislature shall be kept in Urdu as well as in English.

(3) The text of all Bills and amendments thereof moved in and of all Acts passed by the Legislature which shall be treated as authoritative, shall be in

English.

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88. Restriction on discussion in the Legislature : No discussion shall take place in the Legislature with respect to the conduct of any Judge of the Supreme

Court or of the High Court in the discharge of his duties.

89. Courts not to inquire into proceedings of the Legislature : (1) The validity of any proceedings in the Legislature shall not be called in question on

the grounds of any alleged irregularity of procedure.

(2) No officer or member of the Legislature in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business,

or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

90. Requirements as to recommendations regarded as matters of procedure only : No Act of the Legislature and no provision in any such Act shall be invalid

by reason only that some recommendation required by this constitution was not given, if assent to that Act was given by the *Governor.

Legislative Power of the *Governor

91. Power of Governor to promulgate Ordinance during recess of Legislature : (1) If at any time, except when both Houses of the Legislature are in session,

the *Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the

circumstances appear to him to require:

281

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Provided that the power of making an Ordinance under this section shall extend only to those matters with respect to which the Legislature has power to

make laws.

(2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Legislature assented to by the "Governor but every

such Ordinance—

(a) shall be laid before both the Houses of the Legislature, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature,

or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council,

upon the resolution being agreed to by the Legislature Council, and

(b) may be withdrawn at any time by the *Governor.

EXPLANATION: Where the Houses of the Legislature are summoned to reassemble on different dates, the period of six weeks shall be reckoned form the latter

of those dates for the purposes of this sub-section.

Breakdown Constitutional Machinery

92. Provision in case of failure constitutional machinery in the State: (1) If at any time *Governor is satisfied that a situation has arisen in which the

Government of the State cannot be carried on in accordance with the provision of this Constitution, the *Governor may by Proclamation—

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority

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in the State;

(b) make such incidental and consequential provisions as appear to the *Governor to be necessary or desirable for giving effect to the objects of the Proclamation,

including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State

:

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

282

Provided that nothing in this section shall authorise the *Governor to assume to himself any of the power vested in or exercisable by the High Court or

to suspend in whole or in part the operation of any provision of this Constitution relating to the High Court.

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

(3) Any such Proclamation whether varied under subsection (2) or not, shall except where it is a Proclamation revoking a previous Proclamation, cease to

operate on the expiration of six months from the date on which it was first issued.

(4) If the *Governor by a Proclamation under this section assumes to himself any of the powers of the Legislature to make laws, any law made by him in the

exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation

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ceases to have effect, unless sooner repealed or re-enacted by an Act of the Legislature, and any reference in this Constitution to any Acts of or laws

made by the Legislature shall be construed as including a reference to such law.

(5) No Proclamation under sub-section (1) shall be issued except with the concurrence of the President of India.

(6) Every Proclamation under this section shall, except where it is a Proclamation revoking a previous Proclamation, be laid before each House of the Legislature

as soon as it is convened.

PART VII

The High Court

93. Constitution of High Court: (1) There shall be a High Court for the State, consisting of a Chief Justice and two or more other Judges.

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

283

(2) The High Court exercising jurisdiction in relation to the State immediately before the commencement of this Constitution shall be the High Court for

the State.

94. High Court to be a Court of record : The High Court shall be a court of record and shall have all the powers of such a court including the power to

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punish for contempt of itself or of the courts subordinate to it.

95. Appointment and tenure of office of Judges : [(1)] Every Judge of the High Court shall be appointed by the President by warrant under his hand and seal

after consultation with the Chief Justice of India, the 2Governor, and in the case of appointment of a judge other than the Chief Justice, the Chief Justice

of the High Court and '[shall hold office, in the case of an additional or acting judge, as provided in section 100-A, and in any other case until he attains

the age of [sixty-two years].

5[(2) If any question arises as to the age of a Judge of the High Court, the question shall be decided by the President after consultation with the Chief

Justice of India and the decision of the President shall be final.]

96. Qualifications for appointment : A person shall not be qualified for appointment as a Judge of the High Court unless he is a citizen of India, and—

(a) has for at least ten years held a judicial office in the State or in any other part of India; or

(b) has for at least ten years been an advocate of the State High Court or of any other High Court in India or of two or more such courts in succession.

1 Section 95 renumbered as sub-section (1) by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 11.

2 Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

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3 Substituted by the Constitution of Jammu and Kashmir (First Amendment) Act, 1959, s. 2. for "shall hold office until he attains the age of sixty years".

4 Substituted by s. 11, ibid for "sixty years".

5 Inserted by s. 11., ibid.

284

EXPLANATION : For the purposes of this section in computing the period during which a person has been an advocate of a High Court there shall be included

any period during which the person has held judicial office after he became an advocate.

97. Oath or affirmation by Judges of the High Court : Every person appointed to be a Judge of the High Court shall, before he enters upon his office, make

and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose

in the Fifth Schedule.

98. Salaries, etc. of fudges : (1) There shall be paid to the Judges of the High Court such salaries as are specified in the Fourth Schedule.

(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension 2[xxx] as are specified in the Fourth

Schedule:

Provided that neither the allowances of a Judge nor his right in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

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99. Resignation or removal of a Judge of the High Court : (1) A Judge of the High Court may, by writing under his hand addressed to the President, resign

his office.

3(2) Omitted.

3(3) Omitted.

100. Appointment of Acting Judges : (1) When the office of the Chief Justice is vacant or when the Chief Justice is by reason of absence or otherwise unable

to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint

for the purpose.

4(2) Omitted.

5[100-A. Appointment of Additional and acting Judges :

1 Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2,

2 Certain words omitted by the Constitution of Jammu and Kashmir (First Amendment) Act, 1959, s. 3.

3 Sub-sections (2) and (3) of section 99 omitted by s. 4, ibid

4 Sub-section (2) of section 100 omitted by s. 5, ibid.

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5 Section 100-A inserted by s., 6, ibid.

285

(1) If by reason of any temporary increase in the business of the High Court or by reason of arrears of work therein, it appears to the President that the

number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional judges of

the Court for such period not exceeding two years as he may specify.

(2) When any Judge of the High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office

or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent

Judge has resumed his duties.

(3) No person appointed as an additional or acting Judge of the High Court shall hold office after attaining the age of 1[six-two years].]

2[100-B. Appointment of retired Judges at sittings of the High Court: Notwithstanding anything in this Part, the Chief Justice of the High Court may at

any time, with the previous consent of the President, request any person who has held the office of a Judge of the Court or of any other High Court in

India to sit and act as Judge of the High Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances

as the President may be order determine and have all the jurisdiction, powers, privileges of, but shall not otherwise be deemed to be a Judge of the High

Court:

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Provided that nothing in this section shall be deemed to require any such person as aforesaid to sit and act as a Judge of the High Court unless he consents

to do so.]

101. Place of sitting of the Court : (1) The usual places of sitting of the High Court shall be Jammu and Srinagar.

(2) The Chief Justice shall, with the approval of the 3Governor, determine the number of Judges who shall sit from time to time at Jammu and at

1 Substituted by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, s. 12, for "sixty years".

2 Inserted by s. 13, ibid.

3 Substituted for "Sadar-i-Riyasat" by s. 2.

286

Srinagar for such period as may be deemed necessary.

(3) Whenever it appears to the Chief Justice that it is desirable that the High Court should hold its sitting at a place other than Srinagar and Jammu,

one or more Judges of the High Court as determined by him shall, with the previous approval of the *Governor, sit at such place.

102. Saving of existing Jurisdiction of the High Court : Subject to the provisions of this Constitution and to the provisions of any law for the time being

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in force, the jurisdiction of and the law administered in the High Court and the respective powers of the Judges thereof in relation to the administration

of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof, sitting alone or

in Division Courts, shall be the same as immediately before the commencement of this Constitution.

103. Power to issue certain writs : The High Court shall have power to issue to any person or authority, including in appropriate cases any Government within

the State, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certioraris, or any of

them, for any purpose other than those mentioned includes (2-A) of Article 32 of the Constitution of India.

104. Superintendence and control of subordinate Courts : (1) The High Court shall have superintendence and control over all Courts for the time being subject

to its appellate or revisional jurisdiction and all such courts shall be subordinate to the High Court.

(2) Without prejudice to the generality of the foregoing provision, the High Court may—

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

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287

accounts shall be kept by the officers of any such court.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and

pleaders practicing therein :

Provided that any rules made, forms prescribed or tables settled under sub-section (2) or sub-section (3) shall not be inconsistent with the provision of

any law for the time being in force, and shall require the previous approval of the *Governor. 105. Transfer of cases to High Court: If the High Court

is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this constitution or the

Constitution of India the determination of which is necessary for the disposal of the case, it shall withdraw the case and may—

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on

such question and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.

1106. Omitted.

107. Seal : (1) The High Court shall have and use as occasion may require a seal bearing a device and impression of the State emblem with an exergue or

label surrounding the same with the inscription;

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"The seal of the High Court of Jammu and Kashmir"

(2) The seal shall be delivered to, and kept in the custody of, the Registrar or such other officer of the court as the Chief Justice may designate in this

behalf.

108. Officers and servants of the High Court: Appointments of officers and servants of the High Court shall be made

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

1 Section 106 omitted by the Constitution of Jammu and Kashmir (First Amendment) Act, 1959, s. 7

288

by the Chief Justice of the Court or such other Judge or officer of the court as he may direct :

Provided that the *Governor may by rule require that in such cases as may be specified in the rule no person, not already attached to the Court, shall be

appointed to any office connected with the State Public Service Commission.

(2) Subject to the provisions of any law made by the Legislature, the conditions of service of the officers and servants of the High Court shall be such

as may be prescribed by rules made by the High Court with the approval of the *Governor.

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(3) The administrative expenses of the High Court including all salaries, allowances and pensions payable to or in respect of the officers and servants

of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall be charged upon the Consolidated

Fund of the State, and any fees or other moneys taken by the Court shall form party of that Fund.

Subordinate Courts

109. Appointment of district Judges : (1) Appointment of persons to be, the posting and promotion of, district judges in the State shall be made by the

*Governor in consultation with the High Court.

(2) A person not already in the service of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years

an advocate or pleader and is recommended by the High Court for appointment.

1[109-A. Validation of postings and transfers of, and judgments, etc., delivered by, certain district Judges : Notwithstanding any judgment, decree or order

of any court,—

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

1 Inserted vide Constitution of Jammu and Kashmir (Ninth Amendment) Act, 1967.

289

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(a) no posting or transfer of a district judge made at any time before the commencement of the Constitution of Jammu and Kashmir (Ninth Amendment) Act,

1967, otherwise than in accordance with the provisions of Section 109 or Section III shall be deemed to be illegal or vib or ever to have become illegal

or vib by reason only of the fact that such posting or transfer was not made in accordance with the said provisions.

(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement

of the Constitution of Jammu and Kashmir (Ninth Amendment) Act, 1967, by, or before, any person posted or transferred as a district judge in the State

otherwise than in accordance with the provisions of Section 109 or Section 111 shall be deemed to be illegal or invalid or ever to have become illegal

or invalid by reason only of the fact that such posting or transfer was not made in accordance with the said provision.]

110. Recruitment of persons other than district judges to the judicial service : Appointment of persons other than district judges to the judicial service

of the State shall be made by the *Governor in accordance with rules made by him in that behalf after consultation with the Public Service Commission and

with the High Court.

111. Control over subordinate courts : The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant

of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of district judge shall be vested in the

High Court; but nothing in this section shall be construed as taking away from any such person any right of appeal which he may have under the law regulating

the conditions of his service or as authorising the High Court

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* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

290

to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

112. Interpretation : In this Part—

(a) the expression "district judge" includes additional district judges, assistant district judge, sessions judge, additional sessions judge and assistant

sessions judge;

(b) the expression "Judicial service" means a service consisting exclusively of persons intended to fill the post of district judge, and other civil judicial

posts inferior to the post of district judge.

113. Application of the Provisions of this Part to certain class or classes of magistrates : The *Governor may by public notification direct that the foregoing

provisions of this Part and any rules made there under shall with effect from such date as may be fixed by him in that behalf apply in relation to any

class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions

and modifications as may be specified in the notification.

PART VIII

Finance, Property and Contracts

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114. Taxes not to be imposed save by authority of law. No tax shall be levied or collected except by authority of law.

115. Consolidated Fund and public account : (1) Subject to the provisions of Section 116, all revenues received by the Government, all loans raised by the

Government by the issue of treasury bills, loans or ways and means advances and all moneys received by the Government in repayment of loans shall form

one consolidated fund to be entitled "the Consolidated Fund of the State."

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

291

(2) All other public moneys received by or on behalf of the Government shall be credited to the public account of the State.

(3) No moneys out of the Consolidated Fund of the State shall be appropriated except in accordance with law and for the purposes and in the manner provided

in this Constitution.

116. Contingency Fund : The Legislature may by law establish a Contingency Fund in the nature of an imprest to be entitled "the Contingency Fund of the

State" into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the

*Governor to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure

by Legislature by law under section 82 or 83.

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117. Expenditure defrayable by the State out of its revenues : The State may make any grants for any public pur-pose, notwithstanding that the purpose is

not one with respect to which the Legislature may make laws.

118. Custody etc. of Consolidated Fund, Contingency Fund and moneys credited to the public account : The custody of the Consolidated Fund of the State and

the Contingency Fund of the State, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those

credited to such Fund received by or on behalf of the Government, their payment into the public account of the State and the withdrawal of moneys from

such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by Legislature and, until provision

in that behalf is so made, shall be regulated by rules made by the *Governor.

119. Custody of suitor's deposits and other moneys received by public servants and courts : All moneys received by or desposited with —

(a) any officer employed in connection with the affairs of the State in his capacity as such, other

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

292

than revenues or public moneys raised or received by the Government, or

(b) any court within the State to the credit of any cause, matter, account or persons, shall be paid into the public account of the State.

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120. Property saccruing by escheat or lapse or as bona vacantia : Any property within the State, which, if this Constitution had not come into operation,

would have accrued to the Government or any other authority in the State by escheat or lapse or as bona vacantia for want of rightful owner, shall vest

in the State.

121. Power to carry on trade etc. : (1) The executive power of the State shall extend, subject to any law made by the State Legislature, to the carrying

on of any trade or business, and to the grant, sale, disposition or mortgage of any property held for the purposes of the State, and to the purchase or

acquisition of property for those purposes and to the making of contracts.

(2) All property acquired for the purposes of the State shall vest in the State.

122. Contracts : (1) All contracts made in the exercise of the executive power of the State shall be expressed to made by the 'Governor and all such contracts

and all assurances of property made in the exercise of that power shall be executed on behalf of the *Governor by such persons and in such manner as he

may direct or authorise.

(2) The *Governor shall not be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for

the purposes of any enactment relating to the Government of the State heretofore in force, nor shall any person making or executing any such contract or

assurance on his behalf be personally liable in respect thereof.

123. Suits and proceeding : The Government may sue or be sued by the name of the State of Jammu and Kashmir and may, subject to any provisions which may

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be made by

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

293

Act of the Legislature enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to its affairs in the like cases as the State

might have sued or been sued if this Constitution had not been enacted.

PART IX

THE PUBLIC SERVICES

124. Recruitment and conditions of service of persons serving the State : Subject to the provisions of this Constitution, the Legislature may by law regulate

the recruitment, and conditions of service of persons appointed, to public service and posts in connection with the affairs of the State :

Provided that it shall be competent for the *Governor or such person as he may direct to make rules regulating the recruitment, and the conditions of service

of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Legislature under this section and any

rules so made shall have effect subject to the provisions of any such Act.

125. Tenure of office of persons serving the State : (1) Except as expressly provided by this Constitution, every person who is a member of a civil service

of the State or holds any civil post under the State holds office during the pleasure of the *Governor.

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(2) Notwithstanding that a person holding a civil post under the State holds office during the pleasure of the *Governor, any contract under which a person,

not being a member of a civil service of the State, is appointed to hold such a post may, if the * Governor deems it necessary in order to secure the services

of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished

or he is, for

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

294

reasons not connected with any misconduct on his part, required to vacate that post. 126. Dismissal, reduction or removal of persons employed in civil capacities

under the State : (1) No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by

an authority subordinate to that by which he was appointed.

1[(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges

against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him

any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence

adduced during such inquiry :

Provided that this sub-section shall not apply :

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(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority

in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonable to hold such inquiry as is referred to in sub-section (2),

the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]

1 Substituted by s. 14 ibid.

295

127. Transitional provisions : Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement

of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as service

or post under the State, shall continue in force so far as consistent with the provisions of this Constitution.

The Public Service Commission

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128. Public Service Commission for the State : There shall be a Public Service Commission (hereinafter referred to in this Part as "the Commission") for

the State.

129. Appointment and term of office of members : (1) The Chairman and other members of the Commission shall be appointed by the *Governor :

Provided that as nearly as may be one-half of the members of the Commission shall be persons who at the dates of their respective appointments have held

office for at least ten years under the Government.

(2) A member of the Commission shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of

sixty-five years, whichever is earlier :

Provided that :

(a) a member of the Commission may, by writing under his hand addressed to the * Governor, resign his office;

(b) a member of the Commission may be removed from his office in the manner hereinafter provided.

(3) A person who holds office as a member of the Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office.

130. Removal and suspension of a member of the Commission : (1) Subject to the provisions sub-section (3), the Chairman

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* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

296

or any other member of the Commission shall only be removed from his office by order of the *Governor on the ground of misbehaviour after the High Court,

on reference being made to it by the *Governor, has, on inquiry held in that behalf, reported that the Chairman or such other member, as the case may be,

ought, on any such ground, to be removed.

(2) The *Governor may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the High Court

under sub-section (1) until the *Governor has passed orders on receipt of the report of the High Court on such reference.

(3) Notwithstanding anything in sub-section (1), the *Governor may by order remove from office the Chairman or any other member of the Commission if the

Chairman or such other member, as the case may be :

(a) is adjudged an insolvent; or

(b) engages during this term of office in any paid employment outside the duties of his office; or

(c) is, in the opinion of the *Governor, unfit to continue in office by reason of infirmity of mind or body.

(4) If the Chairman or any other member of the Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf

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of the Government of the State, the Government of India or the Government of any other State in India or participates in any way in the profit thereof

or in any benefit or emolument arising therefrom otherwise than as a member and in common with other members of an incorporated company, he shall, for

the purposes of sub-section (1), be deemed to be guilty of misbehaviour.

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

297

131. Power to make regulations as to conditions of service of members and staff of the Commission : The *Governor may be regulations :

(a) determine the number of members of the Commission and their conditions of service; and

(b) make provision with respect to the number of members of the staff of the Commission and their conditions of service :

Provided that the conditions of service of a member of the Commission shall not be varied to his disadvantage after his appointment.

132. Prohibition as to the holding of offices by members of the Commission on ceasing to be such members : On ceasing to hold office the Chairman and the

members of the Commission shall be ineligible for further office under the Government of the State, but a member other than the Chairman shall be eligible

for appointment as a Chairman of the Commission.

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EXPLANATION : For the purposes of this section, the office of Minister or Deputy Minister shall not be deemed to be an office under the Government of the

State.

133. Functions of the Commission : (1) It shall be the duty of the Commission to conduct examinations for appointments to the services of the State.

(2) The Commission shall be consulted :

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfer from one service to Another

and on the suitability of candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under the Government including memorials or petitions relating to such matters;

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

298

and it shall be the duty of the Commission to advise on any matter so referred to them or on any other matter which the *Governor may refer to them :

Provided that the *Governor may make regulations specifying the matters in which either generally, or in any particular class of cases or in any particular

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circumstances, it shall not be necessary for the Commission to be consulted.

(3) Nothing in sub-section (2) shall require the Commission to be consulted as respects the manner in which a provision may be made by the State for the

reservation of appointments or posts in favour of any class of permanent residents which in the opinion of the Government is not adequately represented

in the services under the State.

(4) All regulations made under the proviso to subsection (2) by the 'Governor shall be laid for not less than fourteen days before each House of the Legislature

as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as the Legislative Assembly

may make during the session in which they are so laid.

134. Acting appointment of Chairman of the Commission : If the Office of Chairman of the Commission becomes vacant or if the Chairman is by reason of absence

or for any other reason unable to perform the duties of his office, those duties shall until some person appointed under sub-section (1) of Section 129

to the vacant office has entered on the duties thereof, or, as the case may be, until the Chairman has resumed his duties, be performed by such one of

the other members of the Commission as the *Governor may appoint for the purpose.

* Substituted for "Sadar-i-Riyasat" by the Constitution for Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

299

135. Power to extend functions of the Commission : An Act made by the Legislature may provide for the exercise of additional functions by the Commission

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as respect the services of the State and also as respects the services of any local authority or other body corporate constituted by law or any public

institution.

136. Expenses of the Commission : The expenses of the Commission, including any salaries, allowances and pensions payable to or in respect of the members

or the staff of the Commission, shall be charged on the Consolidated Fund of the State.

137. Reports of the Commission : It shall be the duty of the Commission to present annually to the *Governor a report as to the work done by Commission

and the *Governor on receipt of such report, shall cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the

advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the Legislature.

PART X

ELECTIONS

1[138. Superintendence direction and control of elections : The superintendence, direction and control of the preparation of the electoral rolls for, and

the conduct of, elections to either House of the State Legislature held under this Constitution, [..........] shall vest in the Election Commission of

India.]

139. No person to be ineligible for inclusion in electoral roll on grounds of religion, race, castes or sex. There shall be one general electoral roll for

every territorial constituency

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* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

1 Section 138 substituted by the Constitution of Jammu and Kashmir (First Amendment) Act, 1959, s. 8.

2 Omitted vide Constitution of Jammu and Kashmir (Eighth Amendment) Act, 1967.

300

for election to either House of the Legislature and no person shall be ineligible for inclusion in any such roll or claim to be included in any special

electoral roll for any such constituency on grounds only of religion, race, castes, sex or any of them.

140. Elections to the Legislative Assembly to be on the basis of adult suffrage : The elections to the Legislative Assembly shall be on the basis of adult

suffrage; that is to say, every person who is a permanent resident of the State and who is not less than twenty-one years of age on such date as may be

fixed in that behalf by or under any law made by the Legislature and is not otherwise disqualified under this Constitution or any law made by the Legislature

on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

141. Power of Legislature to make provision with respect to elections to Legislature : Subject to the provisions of this Constitution, the Legislature may

from time to time by law make provision with respect to all matters relating to, or in connection with elections to either House of the Legislature, including

the preparation of electoral rolls, the delimitation of constituencies, appointment of election tribunals and all other matters necessary for securing

the due constitution of the two Houses.

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142. Bar to interference by courts in electoral matters : Notwithstanding anything in this Constitution :

(a) the validity of any law relating to the delimitation of territorial constituencies for the purpose of electing members of the Legislative Assembly or

the allotment of seats to such constituencies, made or purporting to be made under Section 141, shall not be called in question in any court;

(b) no election to either House of the Legislature shall be called in question except by an election petition presented to such authority and in such

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

301

manner as may be provided for by or under any law made by the Legislature.

PART XI

MISCELLANEOUS PROVISIONS

143. Protection of Governor : The *Governor shall not be answerable to any court for the exercise and performance of the power and duties of his office

or for any act done or purporting to be done by him in the exercise and performance of those powers and duties :

Provided that nothing in this sub-section shall be construed as restricting the right of any person to bring appropriate proceedings against the Government.

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(2) No criminal proceedings whatsoever shall be instituted or continued against the *Governor in any court during his term of office.

(3) No process for the arrest or imprisonment of the *Governor shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the *Governor shall be instituted during his term of office in any court in respect of any act

done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as *Governor, until the expiration of

two months next after notice in writing has been delivered to the *Governor or left at his office stating the nature of the proceedings, the cause of action

therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.

144. Flag of the State : The Flag of the State shall be rectangular in shape and red in colour with three equidistant

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

302

white vertical stripes of equal width next to the staff and a white plough in the middle with the handle facing the stripes. The ratio of the length of

the flag to its width shall be 3:2.

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145. Official Language of the State : The official language of the State shall be Urdu but the English language shall unless the Legislature by law otherwise

provides, continue to be used for all the official purposes of the State for which it was being used immediately before the commencement of this Constitution.

146. Academy for development of Art, Culture and Languages : The Governor shall, as soon as may be, after the commencement of the Constitution, establish

an Academy of Arts, Culture and Languages where opportunities will be afforded for the development of Art and Culture of the State and for the development

of Hindi, Urdu and other regional languages of the State specified in the Sixth Schedule.

Power of Amending the Constitution

The question as to what is basic structure for framework of the Constitution is a very vexed question. In the epoch making judgement in Keshvanand Bharati

Case (AIR 1973 SC 1461) while the majority of seven judges as against six recognised certain limitations on the Constitution amending power enshrined in

Art. 368 of the Constitution of India and observed that the identity of the Constitution cannot be charged, the six judges held that the power to amend

the Constitution was unfelered. It will be profitable to call out the conclusions of some of the judges who were party to the majority view.

Sikri J., observed that the expression amendment of the Constitution does not enable the Parliament to change the Fundamental features of the Constitution

so as to destroy its identity.

Shetal and Grover, JJ, went on to say that though the power contained in Art. 368 is wide enough to permit amendment

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* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

303

of each and every article of the Constitution by way of addition, variation or repeal, it does not permit abridgment of the basic elements so as to destroy

the identity of the Constitution.

Jaganatha Reddy, Hegde and Mukherjee, JJ, adopted the same line of thinking.

Khanna. J., held that the word amendment postulates that the existing structure of the Constitution should survive to the extent that it does not lose its

identity i.e., the framework of the Constitution should be retained.

Thus the effect the majority judgment of the Supreme Court is that thinking with the basic structure or framework of the Constitution cannot be countenanced.

From the judgments of the Supreme Court it follows that the power of judicial review of Courts is presented. Thus is made more explicit by the Supreme Court

in Minerva Mills Case (AIR 1980 SC 1789) wherein clauses (4) and (5) of Art. 368 of the Constitution which baned judicial review wee held to be invalid.

Though the Directive Principles contained Part IV of the Constitution are not enforceable an attempt has to be made by the Courts to maintain harmony between

the Fundamental Rights and Directive Principles.

PART XII

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AMENDMENT OF THE CONSTITUTION

147. Amendment of the Constitution : An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in the Legislative

Assembly, and when the Bill is passed in each House by a majority of not less than two-thirds of the total membership of that House, it shall be presented

to the Sadar-i-Riyasat for his assent and, upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms

of the Bill :

Provided that a Bill providing for the abolition of the Legislative Council may be introduced in the Legislative Assembly and passed by it by a majority

of the total membership of Assembly and by a majority of not less than two-

304

thirds of the members of the Assembly present and voting: Provided further that no Bill or amendment seeking to make any change in :

(a) this section; or

(b) the provisions of Sections 3 and 5; or

(c) the provisions of the Constitution of India as applicable in relation to the State;

shall be introduced or moved in either House of the Legislature.

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PART XIII

TRANSITIONAL PROVISIONS

*148. Omitted.

*149. Omitted.

*150. Omitted.

*151. Omitted.

*152. Omitted.

153. Provisions as to Judges of High Court : Notwithstanding anything in Section 96, the Judges of the High Court holding office immediately before the

commencement of this Constitution, shall, unless they have elected otherwise, become on such commencement the Judges of the High Court under this Constitution

and shall thereupon be entitled to such salaries and allowance and to such rights in respect of leave of absence and pension as are provided for under

Section 98 in respect of the Judges of the High Court.

154. Courts authorities and officers to continue to function subject to the provisions of the Constitution : All courts of civil, criminal and revenue jurisdiction,

all authorities and all officers, judicial executive and ministerial, throughout the territory of the State, shall exercise their respective functions

subject to the provisions of this Constitution.

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155. Moneys received or raised or expenditure incurred between the commencement of the Constitution and the 31st day of March, 1957 : The provisions of

this Constitution

* Sections 148, 149, 150, 151 and 152 omitted by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 15,

305

relating to the Consolidated Fund of the State and the appropriation of moneys out of the same shall not apply in relation to moneys received or raised

or expenditure incurred by the Government between the commencement of this Constitution and the thirty-first day of March, 1957, both days inclusive, and

any expenditure incurred during that period shall be deemed to be duly authorised if the expenditure was specified in the sanctioned estimate for 1956-57

or is authorised by the Sadar-i-Riyasat in accordance with such rules as were applicable to the authorisation of expenditure from the revenues of State

immediately before such commencement.

156. Power of Sadar-i-Riyasat to remove difficulties : (1) The Sadar-i-Riyasat may, for the purpose of removing any difficulties, particularly in relation

to the transition from the provisions of the Jammu and Kashmir Constitution Act, 1996, to the provisions of this Constitution by order direct that this

Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition

or omission, as he may deem to be necessary or expedient :

Provided that such order shall be made after the first meeting of the two Houses of the Legislature after their due constitution under the provisions of

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Part VI.

(2) Every order made under sub-section (1) shall be laid before the Provisional Legislature, or the newly constituted Legislature, as the case my be.

157. Repeal and saving of laws and rules : (1) The Jammu and Kashmir Constitution Act, 1996 (XIV of 1996) is hereby repealed.

(2) Notwithstanding the repeal of the said Act but subject to the other provisions of this Constitution, all the laws in force in the State immediately

before the commencement of this Constitution shall continue in force until altered or repealed or amended by competent authority.

(3) All notifications published, proclamations issued, powers conferred, jurisdiction vested, forms prescribed, local limits defined, and orders, rules

306

and appointments made under any regulation, order, law or rule in force immediately before the coming into operation of this Constitution and which are

not inconsistent with any of the provisions of this Constitution, shall be deemed to have been respectively published, issued, conferred, vested prescribed,

defined and made under this Constitution and shall remain in force until repealed or modified either expressly or by implication by competent authority.

158. Unless the context otherwise requires the General Clauses Acts 1977 shall apply for the interpretation of this Constitution as it applies for the interpretation

of an Act of the State Legislature.

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1FIRST SCHEDULE

SECOND SCHEDULE

(See Section 30)

Emoluments, Allowances and Privileges of the

*Governor

1. Emoluments : The emoluments of the "Governor shall be Rs. 5,500 per mensem.

2. Allowance : In order that the *Governor may be enabled to discharge conveniently and with dignity the duties of his office there shall also be paid in

cash each year for each of the purposes specified below such amount, 2[as may be required by the *Governor and as does not, except in cases provided for

in para 3, exceed the maximum amount provided hereunder]:

* Substituted for "Sadar-i-Riynsat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

1 Omitted by the Constitution of Jammu and Kashmir Sixth Amendment, Act 1965, S. 16.

2 Substituted by the Constitution of jammu and Kashmir (Tenth Amendment) Act, 1968, s. 2

307

Maximum amount provided

(i) Sumptuary Allowance Rs. 50,000

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(ii) Staff and Household Rs. 1,35,000

(iii) Tour Expenses Rs. 30,000

(iv) Allowances for Miscellaneous Rs. 20,000 Expenses

Total Rs. 2,35,000

Note :

The grants specified above shall be operated upon in consultation with the Government.

3. The *Governor may in case of necessity in consultation with the Government sanction 1[re-appropriations in respect of or additions to, the grants] specified

in para 2.

4. (1) The *Governor shall throughout his term of office, be entitled without payment of rent or hire, to the use of his furnished official residence and

of motor vehicles specified in the sub-joined table and the maintenance of such residences and motor vehicles shall be at the State expense.

2[Provided that :

(i) if the *Governor occupies as his official residence at Srinagar or Jammu a suitable building owned by him, he shall, be paid such allowance not exceeding

Rs. 12,000 per annum as may be determined by the Government for the maintenance of such building: (ii) the provisions of clause (i) shall be deemed to

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have come into force with effect from the twenty-sixth day of January, 1957.]

(2) The items specified in the sub-joined table may

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

1 Substituted by the Constitution of Jammu and Kashmir (Tench Amendment) Act, 1968, s 2.

2 Inserted by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, -1960, S. 2.

308

be varied or amended by the *Governor with the concurrence of the Government. EXPLANATION : For the purpose of this order :

(a) "official residence" means the official residences to be specified by the Government by notifications and includes the staff quarters and other buildings

appurtenant thereto and the gardens thereof;

(b) Maintenance in respect of motor vehicles specified in the sub-joined table would include pay and allowances of chauffeurs and the provisions of oil

and petrol.

5. There shall be paid to the *Governor, in connection with his assumption of office, and allowance equal to his actual expenses in travelling, with his

family, if any, and his family effects, to take up his duties, and a similar allowance on his vacating the office to return to the place where he ordinarily

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resided at the time of his appointment.

6. The *Governor shall be entitled to the free supply of water and electricity for his domestic use.

7. All motor vehicles specified in the table and any private car owned or maintained by the *Governor shall be exempt from payment of any toll or tax leviable

under any statute or bye-law.

8. The *Governor, any member of his family and the staff accompanying him shall be entitled to stay free of rent in any Dak Bunglaow or Rest House maintained

by the Government.

TABLE

Motor Cars - Two

Jeep - One

Station Wagons - Two

Motor Cycle - One

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1.965, s. 2.

# Substituted for -"one" vide SRO 119 dated 26-3-1968.

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309

THIRD SCHEDULE

(See Section 62)

Salaries and Allowances of the speaker and the Deputy

Speaker of the Legislative Assembly and the Chairman and

the Deputy Chairman of the Legislative Council.

1. There shall be paid to the Speaker of the Legislative Assembly and the Chairman of the Legislative Council such salaries and allowance as are payable

to a Minister of the State Government under the law for the time being in force.

2. (1) There shall be paid to the Deputy Speaker of the Legislative Assembly such salary and allowances as were payable to him immediately before the commencement

of this Constitution.

(2) There shall be paid to the Deputy Chairman of the Legislative Council such salary and allowances as the *Governor may determine.

1FOURTH SCHEDULE

(See Section 98)

Salaries, Allowances and other conditions of service of the Judges of the High Court.

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1. There shall be paid to the Judges of the High Court in respect of time spent on actual service, salary at the following rates per mensem, that is to

say :

The Chief Justice - 4,000 rupees.

Any other Judge - 3,500 rupees.

Provided that if a Judge of the High Court at the time of his appointment is in receipt of a pension (other than a

* Substituted for "Sadar-i-Riyasat" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 2.

1 Fourth Schedule substituted by the Constitution of Jammu and Kashmir (First Amendment) Act, 1959, s. 9.

310

disability) or wound pension) in respect of any previous service under the Government of India or any of its predecessor Governments or under the Government

of a State or any of its predecessor Governments, his salary in respect of service in the High Court shall be reduced :

(a) by the amount of that pension, and

(b) if he has, before such appointment, received in lieu of a portion of the pension due to him in respect of such previous service the commuted value thereof,

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by the amount of that portion of the pension, and

(c) if he has, before such appointment, received a retirement gratuity in respect of such previous service, by the pension equivalent of that gratuity.

2. The rights in respect of leave of absence (including leave allowances) and pension and other conditions of service of the Judges of the High Court shall

be governed by the provisions of the High Court Judges (Conditions of Service) Act, 1954 (Central Act No. 28 of 1954) and the rules made thereunder, for

the time being in force, as if the said Act and the said rules were applicable to the Judges of the High Court of Jammu and Kashmir, and in their application

to the Judges of the High Court of Jammu and Kashmir :

(a) any reference in those provisions to the State 8[***] High Court, Chief Justice, acting Chief Justice, acting Chief Justice, Judge, additional Judge,

acting Judge and General Provident Fund (Central Services) shall be construed, unless the context otherwise requires, as including a reference to the State

of Jammu and Kashmir, *[***] the High Court of Jammu and Kashmir and the Chief Justice, acting Chief Justice, Judge, additional Judge and acting Judge,

of the High Court of Jammu and Kashmir, and State General Provident Fund respectively;

* Omitted by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 17.

311

(b) any reference in those provisions to the "commencement of this Act" shall be construed as a reference to the commencement of the Constitution of Jammu

and Kashmir (First Amendment) Act, 1959.

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3. In this Schedule, unless the context otherwise requires:

(a) the expression "Chief Justice" includes an acting Chief Justice, and a "Judge" includes an additional Judge and an acting Judge;

(b) "actual service" includes :

(i) time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertaken to discharge;

(ii) vacations, excluding any time during which the Judge is absent on leave; and

(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.

1[4. (1) In the calculation of service for pension of a Judge of any other High Court in India transferred to the High Court of Jammu and Kashmir, his actual

service as a Judge of any other High Court in India shall also be reckoned as service for pensions as a Judge of the High Court of Jammu and Kashmir.

(2) In the calculation of the amount of leave at the credit of a Judge of any other High Court in India transferred to the High Court of Jammu and Kashmir,

the amount of leave due to him as a Judge of any other High Court in India shall be added to the amount of leave at his credit as a Judge of the High Court

of Jammu and Kashmir.

1 Added by the Constitution of Jammu and Kashmir (Fourth Amendment) Act, 1963, s. 2.

312

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FIFTH SCHEDULE

(See Sections 40, 64 and 97)

FORMS OF OATHS OR AFFIRMATIONS

Oath for a Minister

FORM A

"I, A. B., do swear in the name of God that I will 1bear solemnly affirm

true faith and allegiance to the Constitution of the State as by law established. *[that I will uphold the sovereignty and integrity of India], that I will

faithfully and conscientiously discharge the duty upon which I am about to enter, and that I will do right to all manner of people in accordance with the

Constitution and the law, without fear or favour, affection or ill-will.

I further do swear in the name of God that I will not solemnly affirm

directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to

me as a Minister for the State except as may be required for the due discharge of my duties as such Minister."

FORM B Oath for a Deputy Minister

"I.A.B., do swear in the name of God that I will bear solemnly affirm

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true faith and allegiance to the Constitution of the State as by law established, *[that I will uphold the sovereignty and integrity of India] and that

I will faithfully and conscientiously discharge the duty upon which I am about to enter, and that I will do right to all manner of people in accordance

with the Constitution and the law, without fear or favour, affection or ill-will.

* Inserted by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 18.

313

I further do swear in the name of God that I will not solemnly affirm

directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to

me as a Deputy Minister for the State except as may be required for the due discharge of my duties as such Minister."

'FORM c

(1)

Form of oath or affirmation to be made by a candidate for election to the State Legislature

"I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly, (or Legislative Council) do swear in the name of God/solemnly

affirm that I will bear true faith and allegiance to the Constitution of the State as by law established and that I will uphold the sovereignty and integrity

of India."

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(II)

Form of oath of affirmation to be made by a member of the State Legislature

"I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council) do swear in the name of God/solemnly affirm that

I will bear true faith and allegiance to the Constitution of the State as by law established, that I will uphold the sovereignty and integrity of India

and that I will faithfully discharge the duty upon which I am about to enter.

FORM D

Oath or affirmation to be made by the Judges of the High Court

"I, A.B., having been appointed Chief Justice (or a Judge) of the High Court of Jammu and Kashmir do swear in the

1 Form C substituted by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, s. 18

314

name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of the State as by law established, 1[that I will uphold the

sovereignty and integrity of India], that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office

without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

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SIXTH SCHEDULE

(See Section 146)

Regional Languages

1. Kashmiri.

2. Dogri.

3. Balti (Pali).

4. Dardi.

5. Punjabi.

6. Pahari.

7. Ladhakhi.

APPENDIX

The Constitution of Jammu and Kashmir (First Amendment) Act, 1959

No. XIX of 1959

(13th October, 1959)

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An Act to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Legislature of Jammu and Kashmir in the Tenth year of the Republic of India as follows :

1. Short title and commencement: (1) This Act may be called the Constitution of Jammu and Kashmir (First Amendment) Act, 1959.

(2) It shall come into force on the twenty-sixth day of January, 1960.

1 Inserted by s. 18, ibid.

315

2. Amendment of Section 95 : In Section 95 of the Constitution of Jammu and Kashmir (hereinafter referred to as the Constitution), for the words "shall

hold office until he attains the age of sixty years", the following words, figures, and letter shall be substituted, namely :

"shall hold office, in the case of an additional or acting Judge, as provided in Section 100-A, and in other case, until he attains the age of sixty years."

3. Amendment of Section 98 : In Section 98 of the Constitution, in sub-section (2), the words "as may from time to time be determined by or under law made

by the Legislature, and until so determined, to such allowances and rights" shall be omitted.

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4. Amendment of Section 99 : In Section 99 of the Constitution, sub-section (2) and sub-section (3) shall be omitted.

5. Amendment of Section 100 : In Section 100 of the Constitution, sub section (2) shall be omitted.

6. Insertion of new Section 100 A. : After Section 100 of the Constitution, the following section shall be inserted, namely:-

"100-A. Appointment of additional and acting Judges : (1) If by reason of any temporary increase in the business of the High Court or by reason of arrears

of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint

duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.

(2) When any Judge of the High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office

or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent

Judge has resumed his duties.

(3) No person appointed as an additional or acting Judge of the High Court shall hold office after attaining the age of sixty years."

7. Omission of Section 106 : Section 106 of the Constitution shall be omitted.

316

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8. Substitution of new section for Section 138 : For Section 138 of the Constitution, the following sections shall be substituted, namely :

"138. Superintendence, direction and control of elections : The Superintendence, direction and control of the preparation of the electoral rolls, for and

the conduct of, elections to either House of the State Legislature held under this Constitution, including the appointment of election tribunals for the

decision of doubts and disputes arising out of, or in connection with, such elections shall vest in the Election Commission of India."

9. Substitution of new Schedule for Fourth Schedule : For the Fourth Schedule to the Constitution, the following Schedule shall be substituted, namely :

FOURTH SCHEDULE

(See Section 98)

Salaries, allowances and other conditions of service of the Judges of the High Court

1. There shall be paid to the Judges of the High Court in respect of time spent on actual service, salary at the following rates per mensem, that is to

say :

The Chief Justice - 4,000 rupees

Any other Judge - 3,500 rupees

Provided that if a Judge of the High Court at the time of his appointment is in receipt of a pension (other than a disability) or wound pension) in respect

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of any previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor

Governments, his salary in respect of service in the High Court shall be reduced :

(a) by the amount of that pension, and

(b) if he has, before such appointment, received in lieu of a portion of the pension due to him in respect of such previous service the commuted value thereof,

by the amount of that portion of the pension, and

317

(c) if he has, before such appointment, received a retirement gratuity in respect of sub previous service, by the pension equivalent of that gratuity.

2. The rights in respect of leave of absence (including leave allowances) and pension and other conditions of service of the Judges of the High Court shall

be governed by the provisions of the High Court Judges (Conditions of Service) Act, 1954 (Central Act No. 28 of 1954) and the rules made thereunder, for

the time being in force, as if the said Act and the said rules were applicable to the Judges of the High Court of the Jammu and Kashmir; and in their application

to the Judges of High Court of Jammu and Kashmir:

(a) any reference in those provisions to the State, Governor, High Court, Chief Justice, acting Chief Justice, judge, additional judge-acting judge and

General Provident Fund, (Central Services) shall be construed, unless the context otherwise requires, as including a reference to the State of Jammu and

Kashmir, Sadar-i-Riyasat, the High Court of Jammu and Kashmir, and the Chief Justice, acting Chief Justice, Judge, additional Judge and acting Judge of

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the High Court of Jammu and Kashmir, and State General Provident Fund respectively;

(b) any reference in those provisions to the "Commencement of this Act" shall be construed as a reference to the commencement of the Constitution of Jammu

and Kashmir (First Amendment) Act, 1959.

3. In this Schedule, unless the context otherwise requires:

(a) the expression "Chief Justice" includes an acting Chief Justice, and a "Judge" includes an additional Judge and an acting Judge;

(b) "actual service" includes :

(i) time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertake to discharge;

(ii) vacations excluding any time during which the Judge is absent on leave; and

318

(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court

to another."

THE CONSTITUTION OF JAMMU AND KASHMIR (SECOND AMENDMENT) ACT, 1960

No. XI of 1960

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(22nd March, 1960)

An Act furthers to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Eleventh Year of the Republic of India as follows :

1. Short title : This Acts may be called the Constitution of Jammu and Kashmir (Second Amendment) Act, 1960.

2. Amendment of Second Schedule Constitution of Jammu and Kashmir : In the Second Schedule to the Constitution of Jammu and Kashmir :

(a) In paragraph 2 for the words and figures Rs. 15,000; Rs. 75,000; Rs. 10,000; Rs. 9,000 and Rs. 1,09,000" the words and figures "Rs. 30,000; Rs. 1,20,000;

Rs. 15,000; Rs. 20,000 and Rs. 1,85,000" shall respectively by substituted;

(b) To sub-paragraph (1) of paragraph 4 the following proviso shall be inserted, namely :

(i) "Provided that : if the Sadar-i-Riyasat occupies as his official residence at Srinagar or Jammu a suitable building owned by him, he shall be paid such

allowance not exceeding Rs. 12,000 per annum as may be determined by the Government for the maintenance of such building;

(ii) The provisions of clause (i) shall be deemed to have come into force with effect from the twenty-sixth day of January, 1957."

319

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THE CONSTITUTION OF JAMMU AND KASHMIR (THIRD AMENDMENT) ACT, 1961

(14th March, 1961)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Twelfth Year of the Republic of India as follows :

1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Third Amendment) Act, 1961.

2. Amendment of section 49 of the Constitution of Jammu and Kashmir : In sub-section (2) of section 49 of the Constitution of Jammu and Kashmir for the

words "five years" the words "thirteen years" shall be substituted.

THE CONSTITUTION OF JAMMU AND KASHMIR (FOURTH AMENDMENT) ACT, 1963

(27th March, 1963)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Fourteenth Year of the Republic of India as follows :

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1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Fourth Amendment) Act, 1963.

2. Amendment of Fourth Schedule to the Constitution of Jammu and Kashmir : In the Fourth Schedule to the Constitution of Jammu and Kashmir, after paragraph

3, the following paragraph shall be added, namely :

"4. (1) In the calculation of service for pension of a Judge of any other High Court in India transferred to the High Court of Jammu and Kashmir, his actual

service as a Judge of any other High Court in India shall also be reckoned as service for pension as a Judge of the High Court of Jammu and Kashmir.

320

(2) In the calculation of the amount of leave at the credit of a Judge of any other High Court in India transferred to the High Court of Jammu and Kashmir,

the amount of leave due to him as a Judge of any other High Court in India shall be added to the amount of leave at his credit as a Judge of the High Court

of Jammu and Kashmir".

THE CONSTITUTION OF JAMMU AND KASHMIR (FIFTH AMENDMENT) ACT, 1963.

(1st October, 1963)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Fourteenth Year of the Republic of India as follows :

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1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Fifth Amendment) Act, 1963.

2. Amendment of Section 50 of the Constitution of Jammu and Kashmir : In Section 50 of the Constitution of Jammu and Kashmir :

(a) In sub-section (4), clauses (c) and (d) shall be omitted;

(b) In sub-section (6), for the word "Six" the word "Eight" shall be substituted.

THE CONSTITUTION OF JAMMU AND KASHMIR (SIXTH AMENDMENT) ACT, 1965

(10th April, 1965)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Legislature of Jammu and Kashmir in the Sixteenth Year of the Republic of India as follows :

1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965.

321

2. Amendment of the Constitution : In the Constitution of Jammu and Kashmir (hereinafter referred to as the Constitution) except in Parts XII and XIII for

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the expression "Sadar-i-Riyasat" and "Prime Minister" wherever they occur the expressions "Governor" and "Chief Minister" shall respectively be substituted.

3. Amendment of Section 2 : In Section 2 of the Constitution, after sub-section (2), the following sub-section shall be inserted, namely :

"(3) Any reference in this Constitution to the Sadar-i-Riyasat shall, unless the context otherwise requires, be construed as a reference to the Governor."

4. Substitution of new section for Section 27 : For Section 27 of the Constitution, the following section shall be substituted, namely :

"27. Appointment of Governor : The Governor shall be appointed by the President by warrant under his hand and seal :

Provided that the person holding office as Sadar-i-Riyasat immediately before the commencement of the Constitution of Jammu and Kashmir (Sixth Amendment)

Act, 1965, shall on such commencement be the Governor and shall, subject to the other provisions of this Constitution, continue to hold office as Governor

until the remaining period of his term for which he was elected as Sadar-i-Riyasat expires."

5. Substitution of new section for Section 29 : For Section 29 of the Constitution, the following section shall be substituted, namely :

"29. Qualifications for appointment as Governor : No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed

the age of thirty years."

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6. Amendment of Section 30 : In Section 30 of the Constitution, in sub-section (1) for the words "Elected and recognised" the word "appointed" shall be

substituted.

322

7. Substitution of new section for Section 31 : For Section 31 of the Constitution, the following section shall be substituted, namely :

"31. Oath of Office : The Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe

in the presence of the Chief Justice of the High Court or, in his absence, the senior most Judge of that Court available, an oath or affirmation in the

following form, that is to say :

'I, A.B., do swear in the name of God (or) solemnly affirm that I will faithfully execute the office of Governor (or discharge the functions of the Governor)

of Jammu and Kashmir and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the

service and well-being of the people of the State."

8. Omission of Section 32 : Section 32 of the Constitution shall be omitted.

9. Substitution of new section for Section 33 : For Section 33 of the Constitution, the following section shall be substituted, namely :

"33. Discharge of the functions of the Governor in certain contingencies. : The President may make such provision as he thinks fit for the discharge of

functions of the Governor in any contingency not provided for in this Part."

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10. Amendment of Section 51 : In Section 51 of the Constitution, for clause (a), the following clause shall be substituted, namely :

"(a) is a permanent resident of the State, and makes and subscribes before some person authorised in that behalf by the Election Commission of India an

oath or affirmation according to the form set out for the purpose in Fifth Schedule."

11. Amendment of Section 95 : Section 95 of the Constitution shall be renumbered as sub-section (1) of that section, and :

(a) in sub-section (1) as so renumbered, for the Words 'sixty years' the words 'sixty-two years' shall be substituted;

(b) after sub-section (1) the following subjection shall be inserted, namely :

323

"(2) If any question arises as to the age of a Judge of the High Court, the question shall be decided by the President after consultation with the Chief

Justice of India and the decision of the President shall be final."

12. Amendment of Section 100-A : In Section 100-A of the Constitution, in sub-section (3), for the words 'sixty years' the words 'sixty-two years' shall

be substituted.

13. Insertion of new section 100-B : After Section 100 A of the Constitution, the following section shall be inserted, namely :

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"100-B : Appointment of retired Judges at sittings of the High Court: Notwithstanding anything in this Part, the Chief Justice of the High Court may at

any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court in

India to sit and act as Judge of the High Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances

as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be a Judge of the

High Court :

Provided that nothing in this section shall be deemed to require any such person as aforesaid to sit and act as a Judge of the High Court unless he consents

so to do."

14. Amendment of Section 126 : In Section 126 of the Constitution, for sub-sections (2) and (3), the following subsections shall be substituted, namely

:

"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against

him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such

penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced

during such inquiry :

324

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Provided that this sub-section shall not apply :

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority

in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in sub-section

(2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

15. Omission of Sections 148 to 152. Sections 148, 149, 150, 151 and 152 of the Constitution shall be omitted.

16. Omission of the First Schedule : The First Schedule to the Constitution shall be omitted.

17. Amendment of the Fourth Schedule : In the Fourth Schedule to the Constitution, in paragraph 2, in clause (a) the words "Governor" and "Sadar-i-Riyasat"

shall be omitted.

18. Amendment of the Fifth Schedule : In the Fifth Schedule to the Constitution :

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(a) in Forms A, B and D, after the words "Constitution of the State as by law established" the words "that I will uphold the sovereignty and integrity of

India" shall be inserted;

(b) for Form C, the following shall be substituted, namely :

325

"Form C (I)

Form of oath or affirmation to be made by a candidate for election to the State Legislature

I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly, (or Legislative Council) do swear in the name of God/solemnly

affirm that I will bear true faith and allegiance to the Constitution of the State as by law established and that I will uphold the sovereignty and integrity

of India.

(II)

Form of oath or affirmation to be made by a member of the State Legislature

I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council) do swear in the name of God/solemnly affirm that

I will bear true faith and allegiance to the Constitution of the State as by law established, that I will uphold the sovereignty and integrity of India

and that I will faithfully discharge the duty upon which I am about to enter."

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19. Construction of reference to "Sadar-i-Riyasat" and "Prime Minister" in other laws, orders, etc. : Any reference in any other law, Ordinance, order,

rule, bye-law, notification or regulation in force in the State immediately before the commencement of the Constitution of Jammu and Kashmir (Sixth Amendment)

Act, 1965, to the Sadar-i-Riyasat or the Prime Minister shall, unless the context otherwise requires, be construed respectively as a reference to the Governor

or the Chief Minister.

20. Savings : Anything done or any action taken (including any order, rule, appointment or delegation made, notification, order, instruction or direction

issued) before the commencement of the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, by or on behalf of the Sadar-i-Riyasat or the Prime

Minister under the provisions of the Constitution or any other law in force in the State shall continue in force unless and until superseded by anything

326

done or any action taken by or on behalf of the Governor, the Chief Minister, or, as the case may be, any other competent authority.

THE CONSTITUTION OF JAMMU AND KASHMIR (SEVENTH AMENDMENT) ACT, 1965

(13th April, 1965)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Sixteenth Year of the Republic of India as follows :

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1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Seventh Amendment) Act, 1965.

2. Amendment of the Second Schedule, Constitution of Jammu and Kashmir : In the Second Schedule to the Constitution of Jammu and Kashmir in paragraph 2,

for the letter and figures "Rs. 30,000", "Rs. l,20,000","Rs. 15,000", "Rs. 20,000", and "Rs. 1,85,000" the letters and figures "Rs. 50,000", Rs. 1,35,000",

"Rs. 30,000", "Rs. 20,000" and "Rs. 2,35,000" shall respectively be substituted.

THE CONSTITUTION OF JAMMU AND KASHMIR (EIGHTH AMENDMENT) ACT, 1967

(25th August, 1967)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Eighteenth Year of the Republic of India as follows :

1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Eighth Amendment) Act, 1967.

2. Amendment of Section 138 : In Section 138 of the Constitution of Jammu and Kashmir, the words, "including the appointment of election tribunals for the

decision of doubts and disputes arising out of, or in connection With, such elections" shall be omitted.

327

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THE CONSTITUTION OF JAMMU AND KASHMIR

(NINTH AMENDMENT) ACT, 1967

(15th October, 1967)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Eighteenth Year of the Republic of India as follows :

1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Ninth Amendment) Act 1967.

2. Insertion of new Section 109-A After Section 109 of the Constitution of Jammu and Kashmir, the following section shall be inserted, namely :

"109-A Validation of postings and transfers of and, judgments, etc., delivered by, certain district judges. Notwithstanding any judgment, decree or order

of any court:

(a) no posting or transfer of a district judge made at any time before the commencement of the Constitution of Jammu and Kashmir (Ninth Amendment) Act,

1967, otherwise than in accordance with the provisions of Section 109 or section III shall be deemed to be illegal or void or ever to have become illegal

or void by reason only of the fact that such posting or transfer was not made in accordance with the said provisions.

(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement

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of the Constitution of Jammu and Kashmir (Ninth Amendment) Act, 1967 by, or before any person posted or transferred as a district Judge in the State otherwise

in accordance with the provisions of Section 109 or Section 111 shall be deemed to be illegal or invalid or ever to have become illegal or invalid or by

reason only of the fact that such posting or transfer was not made in accordance with the said provisions."

328

THE CONSTITUTION OF JAMMU AND KASHMIR (TENTH AMENDMENT) ACT, 1968

(10th October, 1968)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Nineteenth Year of the Republic of India as follows :

1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Tenth Amendment) Act, 1968.

2. Amendment of the Second Schedule Constitution of Jammu and Kashmir : In the Second Schedule to the Constitution of Jammu and Kashmir:

(a) in para 2, for the words, "not exceeding the maximum provided hereunder, as may be required by the Governor", the words "as may be required by the Governor

and as does not, except in cases provided for in para 3, exceed the maximum amount provided hereunder," shall be substituted;

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(b) in para 3, for the words, "re-appropriations in respect of the grants", the words, 're-appropriations in respect of or additions to the, grants", shall

be substituted.

THE CONSTITUTION OF JAMMU AND KASHMIR (ELEVENTH AMENDMENT), ACT 1970

(24th October, 1970)

An Act further to amend the Constitution of Jammu and Kashmir.

Be it enacted by the Jammu and Kashmir State Legislature in the Twenty-First Year of the Republic of India as follows :

1. Short title : This Act may be called the Constitution of Jammu and Kashmir (Eleventh Amendment) Act, 1970.

329

2. Amendment of Section 49 of the Constitution of Jammu and Kashmir : In sub-section (2) of Section 49 of the Constitution of Jammu and Kashmir for the

words, "thirteen years" the words "twenty-three years' shall be and shall always be deemed to have been substituted.

STATE SUBJECT DEFINITION

1. Issued vide Notification No. l-L/84 dated 20th April, 1927 as amended wide Order No :

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(i) 51-L/1989 of Svt. 1989,

(ii) 6-L/1990 of Svt. 1990,

(iii) 98-H/1939 of 1939.

and

2. Notification No. 13-L/1989 dated 27th June, 1932.

THE CONSTITUTION OF INDIA

1. PAT III. Fundamental Rights as applied in relation to the State of Jammu and Kashmir.

2. Article 370.

THE CONSTITUTION OF INDIA PART III

"Fundamental Rights (as applicable in relation to the *State of Jammu and Kashmir)

General

12. Definition:- In this Part, unless the context otherwise requires, "the State" includes the Government and

Section 10 of the Constitution of the State of Jammu and Kashmir provides:—

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" the permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India." Part III of the Constitution of India

dealing with Fundamental Rights as applied in relation to the State of Jammu and Kashmir (i.e., with modifications and exceptions subject two which it

applies) by the Constitution (Application to Jammu and Kashmir) Order, 1954, (C.O. 48 dated 14th May, 1954), as amended up to 31st March, 1967 is given

in this part of compilation.

The aforesaid Order(C.O 48 of 1954) came into force on the fourteenth day of May, 1954 (Clause 1(2) of the Order).

330

Parliament of India and the government and the Legislature of each of the States and all local or other authorities within the territory of India or under

the control of the Government of India.

13. Laws inconsistent with or in derogation of the fundamental right : (1) All laws in force in the territory of India immediately before the commencement

of the Constitution (Application to Jammu and Kashmir) Order, 1954, in so far as they are inconsistent with the provisions of this Part, shall, to the

extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall

to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires :

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(a) "Law" includes any Ordinance, order, bylaw, rule regulation, notification, custom or usage having in the territory of India the force of law.

(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of the

Constitution (Application to Jammu and Kashmir) Order, 1954 and not previously repealed, notwithstanding that any such law or any part thereof may not

be then in operation either at all or in particular areas.

Right or Equality

14. Equality before Law : The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth : (1) The State shall not discriminate against any citizen

on grounds only of religion race, caste, sex, place of birth or any of them*

331

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction

or condition with regard to;

(a) access to shops, public restaurants, hotels and places of public entertainment : or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of

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the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially

and educationally backward classes of citizens or for the Scheduled Castes * [xxx]

16. Equality of opportunity in matters of public employment:

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated

against in respect of any employment or office under the State.

*(3) xxx

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class

of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any

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* In its application to the State of Jammu and Kashmir, the words "and the Scheduled Tribes" in article 15(4) and clause (3) of article 16 been omitted.

332

religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a

particular denomination. 17 Abolition of Untouchability: "Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any

disability arising out of "Untouchability" shall be an offence punishable in accordance with law.

18. Abolition of titles : (1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President,

any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emoluments, or office

of any kind from or under any foreign State.

Right to Freedom

19. Protection of certain rights regarding freedom of speech, etc. : (1) All citizens shall have the right—

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(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India.

(f) to acquire, hold and dispose of property; and,

(g) to practice any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (l) shall affect the operation of any existing law, or prevent the

333

State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests

of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in

relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making

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any law imposing, in the interest of *[the security of the State or] the sovereignty and integrity of India or public order, reasonable restrictions on

the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making

any law imposing, in the interests of *[the security of the State or] the sovereignty and integrity of India or public order or morality, reasonable restrictions

on the exercise of the right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State

from making any law imposing, reasonable restrictions on the exercises of any of the rights conferred by the said sub-clauses either in the interests of

the general public *[or in the interest of the security of the State].

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making

any law imposing, in interests of the general

* The words in square brackets in article 19 (3) and (4) inserted vide C.O. 48 dated 14-5-1954, for a period of twenty years vide C.O. 6 of 1969, w.e.f.

74-5-1954.

334

public reasonable restrictions on the exercise of the right conferred by the said sub-clause, and in particular, nothing in the said sub-clause, shall affect

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the operation of any existing law in so far as it relates to or prevent the State from making any law relating to :

(i) the professional or technical qualifications necessary for practicing any profession or carrying any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or, service, whether to the exclusion,

complete or partial, of citizens or otherwise.

*[(7)the words "reasonable restrictions" occurring in clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate Legislature

deems reasonable].

20. Protection in respect of conviction for offenses. (1) No person shall be convicted of any offense except for violation of a law in force at the time

of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force

at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offense more than once.

(3) No person accused of any offense shall be compelled to be a witness against himself.

21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.

22. Protection against arrest and detetion in certain cases (1) No person who is arrested shall be detained in custody without being informed, as soon as

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may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

* The words in square brackets in article 19(3) and (44) inserted vide C.O. 48 dated 14-5-1954, for a period of twenty years vide C.O. 86 0f 1969, w.e.f.

14-5-1954.

335

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest

excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond

the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply.

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration

of the said period of three months that there is in its opinion sufficient cause for such detention. Provided that nothing in this sub-clause shall authorise

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the detention of any person beyond the maximum period prescribed by any law made by *[the Legislature of the State] under sub-clause (b) of clause (7);

or

(b) such person is detained in accordance with the provisions of any law made by "[the Legislature of the State] under sub-clauses (a) and (b) of clause

(7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as

soon as may be communicate to such person the grounds on which the order has

* In clauses (4) and (7) of article 22 the words "the Legislature of the State" substituted for the word "Parliament"

336

been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers

to be against the public interest to disclose.

(7) *[the legislature of the State] may by law prescribe:

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any

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law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause

(4);

(b) the maximum period for which any person may, in any class or classes be detained under any law providing for preventive detention, and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

Right against Exploitation

23. Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited

and any contravention of this provision shall be an offense punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not

make any discrimination on grounds only of religion, race, caste or class or any of them.

* In clauses (4) and (7) of article 22 the words "the Legislature of the State" substituted for the word "Parliament"

337

24. Prohibition of employment of children in factories etc. : No child below the age of fourteen years shall be employed to work in any factory or mine

or engaged in any other hazardous employment.

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Right to Freedom of religion

25. Freedom of conscience and free profession, practice and propagation of religion : (1) Subject to public order, morality and health and to the other

provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic financial, political or other secular activity which may be associated with religious practice.

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.— The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.— In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina

or Buddhist religion, and the reference to Hindu religious institutions shall be construted accordingly.

26. Freedom to manage religious affairs : Subject to public order, morality and health, every religious denomination or any section thereof shall have the

right—

(a) to establish and maintain institutions for religious and charitable purposes;

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(b) to manage its own affairs in matters of religion

(c) to own and acquire movable and immovable property; and,

(d) to administer such property in accordance with law.

338

27. Freedom as to payment of taxes for promotion of any particular religion : No person shall be compelled to pay any taxes the proceeds of which are specifically

appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions : (1) No religious instruction shall be provided

in any educational institution wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust

which requires that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious

instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premise attached

thereto unless such person or, if such person is a minor his guardian has given his consent thereto.

Cultural and Educational Rights

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29. Protection of interests of minorities : (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language,

script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of

religion, race, caste, language are any of them.

30. Right of minorities to establish and administer educational institutions : (1) All minorities, whether based on religion or language, shall have the

right to establish and administer educational institutions of their choice.

339

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the

management of a minority, whether based on religion or language.

Right to Property

31. Compulsory acquisition of property : (1) No person shall be deprived of his property save by authority of law. 2) No property shall be compulsorily

acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned

and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and

given, and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.

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2-A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled

by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person

of his property.

*3) xxx

*4) xxx

*[5) Nothing in clause (2) shall affect—

(a) the provision of any existing law, or

(b) the provisions of any law which the State may hereafter make—

(i) for the purpose of imposing or levying any tax or penalty; or

* In article 31, clauses (3), (4) and (6) omitted and clause (5) substituted.

340

(ii) for the promotion of public health or the prevention of danger to life or property; or

(iii) with respect to property declared by law to be evacuee property.

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*6) xxx

31-A Saving of laws providing for acquisition of estates, etc1 (1) Notwithstanding anything contained in Article 13, no law providing for:

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights; or,

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management

of the property; or,

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or,

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations,

or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning,

any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights, conferred by Article 14, Article 19

or Article 31:

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2Provided xxx

Provided further that where any law makes any provision for the acquisition by the State of any estate and where

1 In article 31, clauses (3), (4) and (6) omitted and clause (5) substituted.

2 The first proviso to article 31-A omitted.

341

any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land

as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant

thereto, unless the law relating to the acquisition of such land, building or structure provides for payment of compensation at a rate which shall not

be less than the market value thereof

(2) In this article—

*[(a) 'estate' shall mean land which is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pastute, and

includes—

(i) sites of buildings and other structures on such land;

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(ii) trees standing on such land;

(iii) forest land and wooded waste;

(iv) area covered by or fields floating over water;

(v) sites of jandars and gharats;

(vi) Any jagir, inam, muafi or mukarrari or other similar grant, but does not include—

(i) the site of any building in any town, or town area or village adabi or any land appurtenant to any such building or site;

(ii) any land which is occupied as the site of a town or village; or

(iii) any land reserved for building purposes in a municipality or notified area or cantonment or town area or any area for which a town planning scheme

is sanctioned.

(b) the expression "rights" in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor,

* Sub-clause (a) of clause (2) of article 31-A substituted.

342

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tenureholder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

31-B Validation of certain Acts and Regulations : Without prejudicee to the generality of the provisions contained in Art 31-A, none of the Acts and Regulations

specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act,

Regulation or provision in inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding

my judgment, decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall, subject to the power of any competent

Legislature to repeal or amend it, continue in force.

Right to Constitutional Remedies

32. Remedies for enforcement of rights conferred by this Part: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of

the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition quo

warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.

1[(2A) Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which

it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders

or writs, including writs in the nature of habeas corpus, madamus prohibition, quo warranto and certiorari, or any of them, for the

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1 In article 35, the words"the Constitution (Application to Jammu and Kashmir),Order, 1954" substituted for the words "this Constitution" and clause (c)

thereof and article 35-A added.

343

enforcement of any of the rights conferred by this Part.] (3) x x x

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

33. Power to Parliament to modify the rights conferred by this Part in their application to forces. Parliament may by law determine to what extent any of

the rights conferred by this Part shall, in their application to the members of the Armed Forces or the forces charged with the maintenance of public order,

be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

34. Restriction on rights conferred by this Part while martial law is in force in any area : Notwithstanding anything in the foregoing provisions of this

Part, Parliament may be law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection

with the maintenance or restoration or order in any area within the territory of India where martial law was in force or validate any sentence passed,

punishment inflicted, forfeiture ordered or other act done under martial law in such area.

35. Legislation to give effect to the provisions of this Part. Notwithstanding anything in this Constitution—

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(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws (i) with respects to any of the matters which under [xxx] articles

33 and article 34 may be provided for by law made by Parliament and (ii) for prescribing punishment for those acts which are declared to be offences under

this Part;

and Parliament shall, as soon as may be after the commencement of *[the Constitution

1 In article 35, the words "the Constitution (Application to Jammu and Kashmir), Order, 1954" substituted for the words "this Constitution" and clause (c)

thereof and article 35-A added.

2 In clause (a) (i) of article 35, the words, figures and brackets, "clause (3) of article 16, clause (3) of article 32" omitted.

344

(Application to Jammu and Kashmir) Order, 1954,] make laws for prescribing punishment for the acts referred to in sub-clause (ii)

(b) any law in force immediately before the commencement of *the Constitution (Application to Jammu and Kashmir) Order, 1954 in the territory of India with

respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that

clause shall, subject to the term thereof and to any adaptations and modifications that may be made therein under article 372,continue in force until altered

or repealed or amended by Parliament.

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*(c) no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of

the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the pro- visions of this

Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of twenty years from the commencement of the

said Order, except as respects things done or omitted to be done before the expiration thereof.]

Explanation. In this article, the expression "law in force" as the same meaning as in Article 372.

* [35-A. Saving of laws with respect to Permanent resints and their rights : Notwithstanding anything contained this Constitution, no existing law in force

in the State Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State :

(a) defining the classes of persons who are or shall be, permanent residents of the State of Jammu and Kashmir; or

* In article 35, the words"the Constitution (Application to Jammu and Kashmir),Order, 1954" substituted for the words "this Constitution," and clause (c)

thereof and article 35-A added.

345

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment

under the State Government;

(ii) acquisition for immovable property in the State;

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(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State Government may provide shall be void on the ground that it is inconsistent with or takes

away or abridges any rights conferred on the other citizens of India by any provisions of this Part. *370 Temporary provisions with respect to the State

of Jammu&Kashmir : (1) Notwithstanding anything in this Constitution :

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond

to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which

the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

* See the Constitution (Application of Jammu and Kashmir) other 1954 published with the Ministry of Law Notification No, C.O. 48 dated the 14th May, 1954,

Gazette of India, Extraordinary, Part II Section 3 p. 821 as amended from time to time.

346

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Explanation : For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja

of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day

of March 1948 :

(c) the provisions of article (1) and of this article shall apply in relation to that State.

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President

may by order specify : Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph

(i) of sub-clause (b) shall be issued except in consultation with the Government of the State :

Provided further that no such order which relates to matters other than those referred to in the last proceeding proviso shall be issued except with the

concurrence of that Government (2) If the concurrence of the Government of the State referred to in paragraph (ii) as sub-clause (b) of clause (1) or in

the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is

convened, it shall be placed before such Assembly for such decision as it may take thereon.

1 In exercise of the powers conferred by this article the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir

declared that, as form the 17th day of November, 1952 the said Article 370 shall be operative with the modification that for the Explanation in col. (1)

thereof the following Explanation is substituted, namely :

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"Explanation : For the purposes of this art the Government of the State means the person for the time being recognised by the President on the recommendation

of the Legislative Assembly of the State as the *Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for

the time being in office." (Ministry of Law Order No. C.O. 44, dated the 15th November, 1952).

* Now Governor

347

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease

to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify :

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such

a notification.

Significance of the Constitution Orders from 1975 Onwards Applicable to Jammu and Kashmir

1. The Constitution (Application to Jammu and Kashmir Amendment Order, 1975 (C.O. 100 dated 29.6.1995) : The C.O. of 1954 had added a clause to Article

352 of the Constitution relating to proclamation of emergency in the State of Jammu and Kashmir. The C.O. 100 of 1975 made an amendment to this Article.

Prior to the Amendment of 1975 the provision was that no proclamation of emergency made on grounds only of internal disturbance or imminent danger thereof