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Report of the Basic Principles Committee, 1954

Legal Document No 136

The basic principles of the State Constitution will contain provisions relating to the form of the State, the Executive, the Legislature, the Judiciary, the Public Service Commission, the" official Language and other ancillary matters. The recommendations of the Committee in regard to these matters are contained below:

The State of Jammu and Kashmir will comprise such territories which formed part of the State on 15th August, 1947. While retaining its autonomous character the State will continue to remain acceded with the Union of India.

The sovereignty of the State resides in the people thereof and shall except in regard to matters specifically entrusted to the Union, be exercised on their behalf by the various organs of the State.

The governing features of the State Constitution would be based on democracy, equality and social and economic justice. The guiding principle of the State policy would be to ensure the rebuilding of the State by harnessing all its resources for the purpose of securing a better and prosperous life for its people. In order to achieve that end the entire economic activity of the State will be conducted in accordance with plans envisaged in New Kashmir.

In order to satisfy the urge of the people of the State for an intimate association with administration at ail levels the Constitution shall embody suitable provisions to that effect. Suitable provision shall also be made enabling the people to develop their various cultures, languages and scripts and to promote closer association and better understanding amongst themselves.

Based on the decision of the Constituent Assembly for the termination of the Hereditary Rulership in the State, the Head of the State will be a person designated as the Sadar-i-Riyasat whose election and other terms of office will be regulated in accordance with the resolution of the constituent Assembly dated 21st August, 1952.

The superintendence, direction and control of the Government will vest in a council of Ministers headed by the Prime Minister who will be appointed by the Sadar-i-Riyasat. The Prime Minister will tee the person who enjoys the confidence of the State Legislative Assembly. The Council of Ministers will be collectively responsible to the State Legislative Assembly.

The State Legislative Assembly will be composed of members chosen by direct election who will represent constituencies determined by law. The determination of constituencies will be on population basis and on the scale of one member for every 40,000 of the population. Election to the State Legislative Assembly shall be on the basis of adult suffrage, that is to say, every male or female who has attained the age of 18 years and is not otherwise disqualified under the constitution or any Law made by the State Legislative Assembly on grounds of non-residence, unsoundness of mind, crime or corrupt or illegal practice shall have the right to vote. The State Legislative Assembly will have powers to make laws for the State, in respect of all matters falling within the sphere of its residuary sovereignty. Its life will be five years. Provision for the rights, powers and privileges of the members and the Commit-tees of the Assembly should be made on the lines of the corresponding provisions of the Constitution of India. The superintendence, direction and control of all elections to to the State Legislative Assembly including the appointment of Election Tribunals will vest in a Commission to be appointed by the Sadar-i-Riyasat. Provision will also have to be made for a fixed period to promote with special care the interests of the weaker sections of the people by ensuring their representation in the Assembly.

The Judiciary of the State will be independent of executive. The High Court of Judicature shall consist of the Chief Justice and two or more other judges as the Sadar-i-Riyasat may from time to time appoint. In order to ensure the independent and impartial character of the High Court, a judge of the High Court will not be removed from his office except by an order of Sadar-i-Riyasat passed after an address by the National Assembly supported by a majority of the total membership of the National Assembly and by a majority of the total member-ship of the National Assembly and by a majority not less than two thirds of the members of the House present and voting, has been presented to the Sadar-i-Riyasat in the same session for such removal, on the ground of proved misbehaviour or incapacity. Provisions will also have to be made for the terms and conditions of service of High Court Judges commensurate with the independence and dignity of the High Court.

The High Court will be a Court of Record and shall hare all the pokers of such Court including the power to punish for contempt of itself. The High Court shall have the same powers and jurisdiction as are exercised by it at present under the Constitution or any other law in force in the State. Pro-visions in this respect will be modelled on the those contained in the existing Constitution of the State and the relevant parts of the Constitution of India. Adequate provisions shall also be made in the Constitution for ensuring independence and integrity of the subordinate Courts.

An appeal shall lie to the Supreme Court of India from a judgment, decree or final order of the High Court in Civil proceedings if the High Court certifies that the amount or value of the subject matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than 90,000 rupees or that the case is a fit one for appeal to the Supreme Court. Similarly an appeal shall lie to the Supreme Court of India in criminal matters if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or has withdrawn for trail before itself any case from any subordinate court and has in such trial convicted the accused person and sentenced him to death and lastly if the High Court certifies that the case is a fit one for appeal to the Supreme Court. An appeal shall also lie to the Supreme Court of India in certain civil, criminal or other proceeding if-the High Court certifies that the case involves a substantial question of law as to the interpretation of the provisions of the Constitution of India which apply to the State under Article 370 of the Constitution. The original jurisdiction of the Supreme Court will extend to disputes between the Centre and State or States interest as specified in Article 131 of the Consti-tution of India.

Provision with regard to the establishment of a public Service Commission should be made in the Constitution. The appointment of its Chairman and members will be made by the Sadar-i-Riyasat. It will function independent of executive. Its Chairman and other members will be removable from office in the manner provided for the removal of a High Court judge.

The official Language of the State will be Urdu, but English language may be used for all official purposes for which it is being used at present. The Constitution should also recognise the regional languages of the various cultural units of the- State.

Further provisions relating to the transitional and ancillary matters should be incorporated in the Constitution. Necessary provisions should also be incorporated in the Constitution ensuring that an amendment of the Constitution shall be made only by two thirds majority of the total membership of the Assembly.

The State of Jammu and Kashmir having acceded to the Union of India, it becomes necessary to define the relation-ship of the State with Centre. This relationship was originally based on the Instrument of Accession whereby the State of  Jammu and Kashmir acceded to the Union of India in matters of Defence, Foreign Affairs and Communication. When the -dominion of India became a republic, the relationship of the State with the Union was embodied in Article 370 of the Union Constitution. The State's accession to the Union entails certain responsibilities on the Centre for protecting the interests of the State and also for its social and economic development. In order to enable the Centre to discharge its responsibilities which devolve upon it under the Constitution, those provisions of the Constitution of India which may be necessary for this purpose should be made applicable to the State in an appropriate manner. While preserving the internal autonomy of the State all the obligations which flow from the fact of accession and also its elaborations as contained in the Delhi Agreement  should find an appropriate place in the Constitution. The Committee is of the opinion that it is high time that finality in this respect should be reached and the relationship of the State with the Union should be expressed in clear and precise terms. The Committee accordingly recommends:

(i) that a directive be issued to the Drafting Committee to bring up appropriate proposals defining the sphere of Union Jurisdiction in the State suggesting additions, modifications and amendments wherever necessary in the Constitution (Application to Jammu and Kashmir) Order, 1950 to suit requirements of the State;

(ii) that the Drafting Committee should forthwith take up the drafting of the Constitution for the State in the light of the recommendations contained in this report and such other reports as have been or are adopted by this Assembly from time to time.

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