Appendix I
Appendix I The Constitution
(Application to Jammu and Kashmir) Order, 1954
In
exercise of the powers conferred by clause (1) of article 370 of the
Constitution, the President, with the concurence 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 thereupon supersede the
Constitution (Application to Jammu and Kashmir) Order, 1950.
(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, the Constitution (Twenty-first Amendment) Act, 1967,
section 5 of the Constitution (Twenty-third Amendment) Act, 1969, the
Constitution (Twenty-fourth Amendment) Act, 1971, section 2 of the
Constitution (Twenty-fifth Amendment) Act, 1971, the Constitution
(Twenty-sixth Amendment) Act, 1971 the constitution (Thirtieth
Amendment) Act, 1972, section 2 of the Constitution (Thirty-first
Amendment) Act, 1973, section 2 of the Constitution (Thirty-third
Amendment) Act, 1974, sections 2,5 6 and 7 of the Constitution
(Thirty-eighth Amendment) Act, 1975, the Constitution (Thirty-ninth
Amendment) Act, 1975, the Constitution (Fortieth Amendment) Act,
1976, Sections 2, 3 and 6 of Constitution (Fifty-second Amendment)
Act, 1985 and the Constitution (Sixty-first Amendment) Act, 1988
which, in addition to article 1 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:
"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 resettlement in that State or permanent
return issued by or under the authority of any law made by the
Legislature of that State, and every such person shall be deemed to
be a citizen of India".
(4)
Part III
(a) In article 13, references to the commencement of
the Constitution shall be construed as references to the commencement
of this Order.
(b) {...}
(c) In clause (3) of article 16,
the reference to the State shall be construed as not including a
reference to the State of Jammu and Kashmir.
(d) In article 19,
for a period of twenty-five years from the commencement of this
Order: -
(i) in clauses (3) and (4) after the words "in the
interest of", the words "the security of the State or"
shall be inserted;
(ii) in clause (5), for the words "or
for the protection of the interests of any Scheduled Tribe".,
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 word "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 clause, 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 -
(i) for the purpose of imposing or levying
any tax or penalty; or
(ii) for the promotion of the public
health or the prevention of the danger to the life or property;
or
(iii) with respect to property declared by the law to be
evacuee property."
(g) In article 31A, the proviso to
clause (1) shall be omitted; and for sub clause (a) of clause (2),
the following sub clause shall be substituted, namely:
"(a)
"estate" shall mean the land which is occupied or has been
let for agricultural purposes or for purposes subservient to
agricultural, 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;
(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 at 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 land for which a town planning scheme
is sanctioned."
(h) In article 32, clause (3) shall be
omitted.
(i) In article 35 -
(i) references to the
commencement of the Constitution shall be construed as references to
the commencement of this Order;
(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, cease to have any effect on the
expiration of twenty five 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 laws with respect to permanent residents and their rights
Notwithstanding anything contained in this
Constitution, no
existing law in force in the state of Jammu or 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 or Kashmir; or
(b) conferring on
such permanent residents any special rights and privileges or
imposing upon other persons any restrictions as respects -
(i)
employment under the State Goverment;
(ii) acquisition of
immovable property of the State;
(iii) settlement in the State;
or
(iv) right to scholarships and such of 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 right conferred on
the other citizens of India by any provision of this Part".
(5)
Part V
(a) For the purposes of article 55, the population of the
State of Jammu and Kashmir shall be deemed to be sixty three
lakhs.
(b) In article 81, for clauses (2) and (3), the following
clauses shall be substituted, namely:
"(2) For the purposes
of sub clauses (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 Act, 1972,
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 has to physical
features, existing boundaries of administrative units, facilities of
communication and public convenience; and
(d) the constituencies
into which the State is divided shall not comprise the area under the
occupation of Pakistan.
(3) Nothing in clause (2) shall affect
the representation of the State in the House of the People until the
dissolution of the House existing on the data of publication in the
Gazette of India of the final order or orders of the Delimitation
Commission relating to the delimitation of parliamentary
constituencies under the Delimitation Act, 1972.
(4)(a) The
Delimitation Commission shall associate with itself for the purposes
of assisting it in the duties in respect of the State, five persons
who shall be members of the House of the People representing the
State.
(b) The persons to be so associated from the State shall
be nominated by the Speaker of the Hose of the People having due
regard to the composition of the House.
(c) The first
nominations to be made under the sub clause (b) shall be made by the
Speaker of the House of the People within two months from the
commencement of the Constitution (application to Jammu and Kashmir)
Second Amendment Order, 1974.
(d) None of the associate members
shall have a right to vote or to sign any decision of the
Delimitation Commission.
(e) If owing to death or resignation,
the office of an associate member falls vacant, it shall be filled as
may be practicable by the Speaker of the House of the People and in
accordance with the provisions of sub clauses (a) and (b)."
(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
this Act", "this Act had not been passed" and "is
amended by this 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
"."
(d) In article 134, clause (2), after the words
"Parliament may", the words "on request of the
Legislature of the State" shall be inserted.
(e) articles
135 and 139 shall be omitted.
(5A)
Part VI
(a) articles 153 to 217, article 219, article 221,
articles 223, 224, 224A and 225 and articles 227 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.
(c) In article 222, after clause (1), the following
new clause shall be inserted, namely:
"(1A) Every transfer
from the High Court of Jammu and Kashmir or to that High Court shall
be made after consultation with the Governor."
(6)
Part XI
(a) In article 246, for the words, brackets and figures
"clauses (2) and (3)" occurring in clause (1), the word,
bracket 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.
(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 involving
terrorist acts directed towards over awing the Government as by law
established or striking terror in the people or any section of the
people or alienating any section of the people or adversely affecting
the harmony amongst different section of the people;
(aa)
prevention of other activities directed towards disclaiming,
questioning or disrupting the sovereignty and territorial integrity
of India of bringing about cession of a part of the territory of
India or secession of a part of the territory of India from the Union
or causing insult to the Indian National Flag, the Indian National
Anthem and this Constitution and
(b) taxes on -
(i) foreign
travel by sea or air;
(ii) inland air travel;
(iii) postal
articles, including money orders, phonograms and
telegrams."
Explanation: In this article, "terrorist
act" means any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or firearms or other
lethal weapons or poisons or noxious gases or other chemicals or any
other substances (whether biological or otherwise) of a hazardous
nature.
(bb) In article 249, in clause (1), for the words "any
matter enumerated in the State List specified in the resolution",
the words "any matter specified in the resolution being a matter
which is not enumerated in the Union List or in the concurrent List"
shall be substituted.
(c) In article 250, for the words "to
any of the matters enumerated in the State List", the words
"also to matters not enumerated in the Union List" shall be
substituted.
(d) {...}
(e) to article 253, the following
proviso shall be added, namely: "Provided that after the
commencement of the Constitution (Application to Jamuu and Kashmir)
Order, 1954, no decision affecting the disposition of the State of
Jammu and Kashmir shall be made by the Government of the State".
(f)
article 255 shall be omitted.
(g) article 256 shall be re
numbered as clause (1) of that article, and the following new clause
shall be added thereto, namely:
"(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 the 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 if 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".
(h)
In clause (2) of article 261, the words "made by Parliament"
shall be omitted.
(7)
Part XII
(a) Clause (2) of article 267, article 273, clause (2)
of article 283 and article 290 shall be omitted.
(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.
(c) In articles 277 and 295, references to the
commencement of the Constitution shall be construed as references to
the commencement of this Order
(8)
Part XIII
In clause (1) of article 303, the words "by
virtue of any entry relating to trade and commerce in any of the
Lists in the Seventh Schedule" shall be omitted.
(9)
Part XIV
In article 312, after the words "the States",
the brackets and words "(including the State of Jammu and
Kashmir)" shall be inserted.
(10)
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.
(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.
(e) In article 329 A,
clauses (4) and (5) shall be omitted.
(11)
Part XVI
(a) articles 331, 332, 333, 336 and 337 shall be
omitted. (b) 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.
(c) In clause (1) of article 339, the words
"the administration of the Scheduled Areas and "shall be
omitted.
(12)
Part XVII
The provisions of the Part shall only in so far relate
to -
(i) the official language of the Union;
(ii) the
official language for the communication between one State and
another, or between a State and the Union; and
(iii) the
language of the proceedings in the Supreme Court.
(13)
Part XVIII
(a) To article 352, the following new clause shall be
added, namely:
"(6) No Proclamation of Emergency made on
grounds only of internal disturbance of imminent danger thereof shall
have effect in relation to the State of Jammu and Kashmir (except as
respects article 354) unless -
(a) it is made at the request or
with the concurrence of the Government of that State, or
(b)
where it has not been so made, it is applied subsequently by
the
President to that State at the request or with the concurrence of the
Government of the 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.
(14)
Part XIX
(a) article 365 shall be omitted.
(b) To article
367, there shall be added the following clause, namely:
"(4)
For the purposes 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 Constitution or the provisions thereof as applied
in relation to the said State;
(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 of 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, 1965, such references shall be
construed as including to the Sadar i Riyasat acting on the advice of
his Council of Ministers;
(c) references to High Court shall
include references to the High Court of Jammu and Kashmir;
(d)
references to the permanent residents 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 force in the State or
who are recognised by any law made by the Legislature of the State as
permanent residents of the State; and
(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 Sadar i Riyasat."
(15)
Part XX
(a) To clause (2) of 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 clause (1) of
article 370.";
(b) After clause (3) of article 368, the
following clause shall be added, namely:
"(4) No law made
by the Legislature of the State of Jammu and Kashmir seeking to make
any change in or in the effect any provision of the Constitution of
Jammu and Kashmir relating to -
(a) appointment, powers,
functions, duties, emoluments, allowances, privileges or immunities
of the Governor; or
(b) superintendence, direction and control
of elections by the Election Commission of India, eligibility for
inclusion in the electoral rolls without discrimination, adult
suffrage and composition of the Legislative Council, being matters
specified in section 138, 139, 140 and 150 of the Constitution of
Jammu and Kashmir,
shall have any effect unless such law has,
after having been
reserved for the consideration of the
President, received his assent."
(16)
Part XXI
(a) articles 369, 371, 371A, 372A, 373, clauses (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 hidayat, ailans,
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 Jammu and
Kashmir; and
(iii) references to the commencement of the
Constitution shall be construed as references to the commencement of
the 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
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
(20)
Third Schedule
Forms V, VI, VII and VIII shall be omitted.
(21)
Fourth Schedule
(22)
Seventh Schedule
(a) In the Union List -
(i) for entry 3,
the entry "3. Administration of cantonments." shall be
substituted;
(ii) entries 8, 9 and 34, entry 79, and the words
"Inter State-migration" in entry 81 shall be omitted;
(iii)
in entry 72, the reference to the States 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 the
election petition whereby an election to either House of the
Legislature of the 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; and
(iv)
for entry 97, the following entry shall be substituted, namely:
97.
Prevention of activities -
(a) involving terrorist acts directed
towards overawing the Government as by law established or striking
terror in the people or any section of the people or alienating any
section of the people or adversely affecting the harmony amongst
different sections of the people;
(b) directed towards
disclaiming, questioning or disrupting the sovereignty and
territorial integrity of India or bringing about cession of a part of
the territory of India or secession of a part of the territory of
India from the Union or causing insult to the Indian National Flag,
the Indian National Anthem and this Constitution.
### Taxes on
foreign travel by sea or air, on inland air travel and on postal
articles, including money orders, phonograms and
telegrams.
Explanation: In this entry, "terrorist act"
has the same meaning as in the Explanation to the article 248.
(b)
The State List shall be omitted.
(c) In the Concurrent List
-
(i) for entry 1, the following entry shall be substituted,
namely:
"1. 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 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 the List.";
(ia) for entry 2, the following
entry shall be substituted, namely:
"2. Criminal procedure
(including prevention of offences and constitution and organisation
of criminal courts, except the Supreme Court and High Court) in so
far as it relates to, -
(i) offences against laws with respect
to any matters being matters with respect to which Parliament has
power to make laws; and
(ii) administration of oaths and taking
of affidavits by diplomatic and consular officers in any foreign
country."
(ib) for entry 12, the following entry shall be
substituted, namely:
"12. Evidence and oaths in so far as
they relate to, -
(i) administration of oaths and taking
affidavits by diplomatic and consular officers in any foreign
country; and
(ii) any other matters being matters with respect
to which Parliament has power to make laws.;
(ic) 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;
(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)
entry 3, entries 5 to 10 (both inclusive), entries 14, 15, 17, 20,
21, 27, 28, 29, 31, 32, 37, 38, 41 and 44 shall omitted;
(iiia)
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 aesthetic value." shall be
substituted; and
(iv) in entry 45, for words and figures "List
II or List III", the words "this List" shall be
substituted.
(23)
Eighth Schedule
(24)
Ninth Schedule
(a) After entry 64, the following entries shall
be added, namely: 64A. The Jammu and Kashmir State Kuth Act (No. I of
Svt. 1978).
64B. The Jammu and Kashmir Tenancy Act (No. II of
Svt. 1980).
64C. The Jammu and Kashmir Alienation of Land Act
(No. V of Svt. 1995).
64D. The Jammu and Kashmir Big Landed
Estates Abolition Act (No. XVII of Svt. 2007).
64E. Order No. 6
H of 1951, dated the 10th of March, 1951, regarding Resumption of
Jagirs and other assignments of land revenue, etc.
64F. The
Jammu and Kashmir Restitution of Mortgaged Properties Act, 1976 (Act
XIV of 1976).
64G. The Jammu and Kashmir Debtor's Relief Act,
1976 (Act XV of 1976).
(b) Entries 87 to 124, inserted by the
Constitution (Thirty ninth Amendment) Act, 1975, shall be renumbered
as entries 65 to 102 respectively.
(c) Entries 125 to 188 shall
be renumbered as entries 103 to 166 respectively.
(25)
Tenth Schedule
(a) for the brackets, words and figures "Articles
102 (2) and
19 (2)", the brackets, words and figures
"Article 102 (2)" shall be substituted;
(b) in clause
(a) of paragraph 1, the words "or the Legislative Assembly or,
as the case may be, either House of the Legislature of a State"
shall be omitted;
(c) in paragraph 2, -
(i) in sub
paragraph (1), in sub clause (ii) of clause (b) of the Explanation,
the words and figures "or, as the case may be, article 188"
shall be omitted;
(ii) in sub paragraph (3), the words and
figures "or, as the case may be, article 188" shall be
omitted;
(iii) in sub paragraph (4), the reference to the
commencement of the Constitution (Fifty second Amendment) Act, 1985
shall be construed as a reference to the commencement of the
Constitution (Application to Jammu and Kashmir) Amendment Order,
1989;
(d) in paragraph 5, the words "or the Chairman or the
Deputy Chairman of the Legislative Council of a State or the Speaker
or the Deputy Speaker of the Legislative Assembly of a State",
shall be omitted;
(e) in sub paragraph (2) of paragraph 6, the
words and figures "or, as the ca se may be, proceedings in the
Legislature of a State within the meaning of article 212" shall
be omitted;
(f) in sub paragraph (3) of paragraph 8, the words
and figures "or, as the case may be, article 194," shall be
omitted.
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