An Overview of the Governance Content of India’s Constitution

Abstract

This chapter sketches the basic contours of the Indian Constitution especially as it applies to the economic content of the governance structure. Basic features of the Indian Constitution are discussed, including the granting of universal adult franchise, fundamental rights and liberties, protection of weaker sections of society and the structure of parliamentary democracy. Constitutional and legal structures in the country are briefly outlined, before a discussion of basic elements of the taxation structure.

Appendix: On Some aspects of the Special Status of the State of Jammu and Kashmir

Article 370 of the Indian Constitution is a “temporary provision” which grants semi-autonomous status to Jammu and Kashmir . As per this article, except for defense, foreign affairs, finance and communication, the Parliament of India needs the concurrence of the Assembly of the State of Jammu and Kashmir for the laws it (the Parliament of India) passes.¹⁷ Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property and fundamental rights, from other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu and Kashmir . Under Article 370 , the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

This provision was drafted by Sheikh Abdullah (in 1947) who had been appointed by Nehru and the then King of Jammu and Kashmir , Hari Singh. Over time the autonomy under Article 370 has been watered down somewhat. Thus, until 1965 Jammu and Kashmir had a Sadr-e-Riyasat for governor and a prime minister in place of chief minister. Nevertheless, key provisions remain. In particular, in May 1954 a clause no. 35A was inserted into the provisions of Article 370. This was done by presidential order; in other words, it was not passed by Parliament. Article 368 of the Indian Constitution requires that an insertion such as this should be considered as an Amendment to the constitution and hence be passed by Parliament to satisfy the conditions of such an amendment.

Article 35 A allows the state government of Jammu and Kashmir unlimited powers to define who is a permanent resident of Jammu and Kashmir . Those who are living in Jammu and Kashmir but are not its permanent residents under state law are not entitled to special privileges and rights in respect of enumerated items like right to be employed by the state, own immovable property or settle in the state or receive state grants. This provision cannot be questioned on the ground that it is arbitrary, discriminatory or that it is opposed to the other fundamental rights that guarantee every citizen the freedom to settle down in any part of India. In fact, the article is a restriction on the fundamental rights of other citizens.

The provisions of this Jammu and Kashmir law are obviously discriminatory against women. The relevant rule for dealing with application for grant of permanent resident certificate reads: “Any person who fulfils the above conditions can apply for PRC, except any woman who is married outside the state.” Others who have been living in the state for a long time also do not have the rights of a permanent resident. This is in disagreement with other provisions of the Indian Constitution, in particular Article 14, which guarantees equality of all citizens before the law. This article says:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

In response to litigation, the Supreme Court of India will make a determination on the constitutionality of Article 35A in the near future.