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SPECIAL STATUS OF JAMMU & KASHMIR
Under the Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, Article 370 is a temporary provision granting special autonomous status to Jammu and Kashmir.
The Temporary, Transitional and Special provisions are provided in part XXI of our constitution’ Article 370 deals with the State of Jammu & Kashmir which forms a part of the ‘territory of India’ as defined in Article 1 of the Constitution, being the fifteenth State included in the First Schedule of the Constitution, as it stands amended.
Nevertheless, the special Constitutional position which Jammu & Kashmir enjoyed under the original Constitution has been maintained, so that all the provisions of the Constitution of India relating to the States in the First Schedule are not applicable to Jammu & Kashmir. This is the only State which has its own Constitution.
Article 370 Regarding Jammu and Kashmir:
No law passed by the Parliament regarding the state of Jammu and Kashmir can be applied to the state without the Order of President of India in concurrence of the State government.
No such conditions exist in the case of other states. In the original Constitution of Jammu and Kashmir, the provisions of Article 370 were described as “temporary” measures. Under the agreement of 1975 signed between Sheikh Abdullah and Indira Gandhi it was agreed upon that Abdullah will give up the demand for plebiscite and special status of Jammu and Kashmir will continue; it would no longer remain a temporary measure.
But the agreement could not be implemented owing to the differences and the Order of the President could not be issued. Jammu and Kashmir is the only state in the country having a Constitution of its own within the framework of India Union.
The Course of Integration:
The constitutional relations between Jammu and Kashmir and India, originally based on the Instrument of Accession executed by the State, were reflected in the Constitution of India which made it clear that only two of its articles, viz.
Article 1, which declared Jammu and Kashmir to be a part of India’s territory and Article 370 which defined the State’s special status, would apply in full to this State. The Presidential Order of 26 January 1950 stipulated that the legislative authority of the Union Parliament would be confined, in respect of the state of Jammu and Kashmir, to those items of the Union and Concurrent Lists which corresponded to matters specified in the Instrument of Accession.
In effect, this meant that no laws passed by Parliament except those relating to any 36 to the 37 items in the Union List would be enforceable in Jammu and Kashmir. Naturally, Parliament was to have no residuary legislative jurisdiction; nor could Parliament’s laws on concurrent matters apply to this State except with its own concurrence. Of the 22 pars of the Constitution, as many as nine, including the Preamble, Part II (Citizenship), Part III (Fundamental Rights), Part XIII (Trade Commerce and Intercourse within the Territory of India) Part XVIII (Emergency provisions) were wholly inapplicable to Jammu and Kashmir, the remaining thirteen parts being only partially applicable to it.
The above arrangement was to continue until the State elected its Constituent Assembly and the President of India abrogated Article 370 of the Constitution or modified it in accordance with the latter’s recommendations. The first major step in this direction was taken by means of Presidential Order issued in 1954.
This order determines the Constitutional relations of the State with India. Under this order the Preamble and parts I, II, and III of the Constitution of India were made applicable to Jammu and Kashmir with certain modifications. Part V of the Constitution was made applicable to the State in almost it’s entirely.
Further, Part CI (Relations between the Union and the States) and bulk of Part XII (Finance, Property, Contracts and Suits) were extended to it. The Presidential order 26 February 1958 carried the process of integration a step further by extending the jurisdiction of the Comptroller and Auditor-General of India to Jammu and Kashmir and making Part XII, XIII, and XIV of the constitution wholly applicable to the State.
Until recently, the head of the state in Jammu and Kashmir was designated Sadar-i-Riyasat and not Governor as in other States while the head of the Government was known as Prime Minister. These anomalies have now been removed and Jammu and Kashmir has a Governor and a Chief Minister like other States.
Special Position of Jammu & Kashmir:
A whole state of Jammu and Kashmir enjoys special status among the states in India under Article 370 of the Constitution. This state enjoys special position because of the special circumstances under which it was brought under the governance of the Union of India.
During the British period the state of Jammu and Kashmir was ruled by a hereditary king. Like many rulers Maharaja Hari Singh joined Dominion of India by signing the Instrument of Accession on October 26, 1947.
India agreed to accept the accession of Jammu and Kashmir on the request of Maharaja, who had found it necessary following the attack of the Azad Kashmir forces in the wake of the formation of Pakistan.
Accordingly the subjects of Defence, External Affairs and Communication in respect of Jammu and Kashmir like other states which joined India as per the Instrument came under the jurisdiction of Dominion of India. With the implementation of the Constitution in 1950, the state of Jammu and Kashmir was included in the Part B of the first Schedule.
Despite being a member of the Part E3 states, the part in which the erstwhile big Princely states were placed, special provisions were devised for the governance of the state of Jammu and Kashmir.
These provisions were different from those meant for other states of the part B. These were incorporated in the Article 370 of the Constitution. According to the provisions of this article, the state of Jammu and Kashmir was given a separate Constituent Assembly.
It consisted of the representatives of people of the state. The aim of the Constituent Assembly was to write the constitution of the state and demarcate the jurisdiction of Union of India over the state of Jammu and Kashmir. The provisions of the Constituent Assembly were; applied as interim arrangements.
Even as in the cases of erstwhile princely states, the Government of India was empowered to exercise control over all issues mentioned in the Union List, in this case the Government of India had given public assurance that the Accession of this state to the Union of India would be subject to the confirmation by the people of Jammu and Kashmir.
The Government of India in turn put the condition on the Maharaja that following the accession the Maharaja would introduce a popular government. It meant that he would abolish the hereditary rule.
The accession was confirmed by the people of Jammu and Kashmir through their representatives in the Constituent Assembly of state. But it was done on the condition that Jammu and Kashmir would be governed by different rules to be framed by the Constituent Assembly.
The suggestions of the Constituent Assembly of Jammu and Kashmir were incorporated in Article 370 of the Constitution of India. The continuation, amendment or the suspension of this article cannot be done without support of a majority not less than two thirds of the membership of legislation Assembly of Jammu and Kashmir, which means people of the state.
The President of India assented the recommendations of the Constituent Assembly by making Constitution (Application to Jammu and Kashmir) Order, 1950, in consultation with the Government of Jammu and Kashmir.
This Order specified that the Parliament of India would be competent to make laws relating to three areas – Defence, Foreign Affairs, Communication, i.e., issues agreed upon in the Instrument of Accession. All other issues were to be administered according to the Constitution of Jammu and Kashmir.
Again, in 1952, an agreement was signed between the state government and the Union of India. This agreement brought all issues mentioned in the Union List, not only three issues of Defence, Foreign Affairs and Communication, under the jurisdiction of the Union Government, pending the decision of the Constituent Assembly of Jammu and Kashmir.
In 1954, the Constituent Assembly of Jammu and Kashmir ratified the Accession to India as well as the agreement between the state government and the Union of India. The President in consultation with the state government made the Constitution (Application to Jammu and Kashmir) Order, 1954.
This Order implemented the agreement of 1952 signed between the state government and the Union government and ratified the Constituent Assembly. This Order also super-ceded the earlier Order of 1950.
The Order of 1952 expanded the scope of jurisdiction of the centre from just three subjects of Defence, Foreign Affairs and Communication mentioned in the Instrument of Accession of Jammu and Kashmir to all subjects mentioned in the Union subjects in the Constitution of India.
This Order was amended seven times between 1963 and 1974. The amended Order brings the entire constitutional position of the state of Jammu and Kashmir within the framework of the Constitution of India, excluding the Constitution of Jammu and Kashmir which was made by the Constituent Assembly of the state.
The state of Jammu and Kashmir is the only state in the country which has its own Constitution. It is also the only state, which had a Constituent Assembly, which drafted the constitution of the state. The Constituent Assembly of Jammu and Kashmir, was elected by the people of the state. The Constituent Assembly met for the first time on October 31, 1951.
Special Relationship of J&K with the Indian Union:
(i) J&K have its own Constitution framed by a special Constituent Assembly set up by the State.
(ii) Parliament cannot make any law without the consent of the State Legislature relating to:
(a) Alteration of name and territories of the State.
(b) International treaty/agreement affecting the disposition of any part of the territory of the State.
(iii) The residuary power in respect of J&K rests with the State Government and not with the Union Government.
(iv) The Fifth Schedule pertaining to the administration and control of Scheduled Areas and Scheduled Tribes and the Sixth Schedule pertaining to the administration of Tribal Areas are not applicable to the State of J&K.
(v) The provisions of the Indian Constitution regarding denial of citizenship to person who migrated to Pakistan do not apply to Permanent residents of J&K who after having migrated to the territory, now included in Pakistan, return to the territory of that State or permanent return issue by or under the authority of any law made by the Legislature of that State and even such person shall be deemed to be a citizen of India.
(vi) Certain special rights have been granted to the permanent residents of the State of J&K with regard to employment under the State; acquisition of immovable property in the State; settlement of the State etc.
(vii) No proclamation of emergency made by the President under Article 352 on the ground of armed rebellion shall have effect on the State of J&K without the State Government’s concurrence.
(viii) The Union has no power to suspend the Constitution of the State on the ground of failure to comply with the direction given by the Union. In the event of the breakdown of the Constitutional machinery in the State, Governor’s Rule is to be imposed. However, in 1964, Articles 356 arid 357 was extended to that State in the event of a breakdown of Constitutional machinery to take over the administration of that State.
The Parliament was also provided the power to legislate for the State during emergency under Article 356. The first occasion when President’s Rule under Article 356 was imposed in J&K was in 1986 to follow Governor’s Rule. The Union has no power to make a proclamation of financial emergency in the State.
(ix) The provisions of Part IV relating to the Directive Principle of State Policy do not apply to J&K.
(x) No amendment of the Constitution of India can extend to J&K unless it is so extended by the order of the President under Article 370 (1).
(xi) The High Court of J&K enjoys very limited powers. It cannot declare any law unconstitutional or issue writs, except for the enforcement of the Fundamental Right.
By amendments of the Constitutional order, the jurisdiction of the Comptroller & Auditor- General, Election Commission and the special leave jurisdiction of the Supreme Court have been extended to the State of J&K.
Jurisdiction of Parliament:
It is confined to the matters enumerated in the Union List, and the Concurrent List, subject to certain modifications, while it shall have no jurisdiction as regards most of the matters enumerated in the Concurrent List.
While in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary power shall belong to the Legislature of that State, excepting certain matters, specified in 1969, for which Parliament shall have exclusive power.
The power to legislate with respect to preventive detention in Jammu and Kashmir belongs to the Legislature of the State instead of Parliament so that no law of preventive detention made by Parliament will extend to that State.
By the Constitution (Application to Jammu and Kashmir) Order, 1986, however, Art. 249 has been extended to the State of Jammu & Kashmir, so that it would now be competent to extend the jurisdiction of Parliament to that State, in the national interest (e.g., for the protection of the borders of the State from aggression from Pakistan or China), by passing a resolution in the Council of States.
Autonomy of the State in Certain Matters:
The plenary power of the Indian Parliament is also curbed in certain other matters, with respect to which Parliament cannot make any law without the consent of the Legislature of the State of Jammu and Kashmir, where that State is to be affected by such legislation, e.g., (i) alteration of the name of territories of the State (Art. 3). (ii) International treaty or agreement affecting the disposition of any part of the territory of the State (Art. 253).
Similar fetters have been imposed upon the executive power of the Union to safeguard the autonomy of the State of Jammu and Kashmir, a privilege which is not enjoyed by the other States of the Union, thus,
- No Proclamation of Emergency made by the President under Art. 352 on the ground of internal disturbance shall have effect in the State of Jammu & Kashmir, without the concurrence of the Government of the State,
- Similarly, no decision affecting the disposition of the State can be made by the Government of India, without the consent of the Government of the State,
- The Union shall have no power to suspend the Constitution of the State on the ground of failure to comply with the directions given by the Union under Art. 365.
In the event of a breakdown of the constitutional machinery as provided by the State Constitution, it is the Governor who shall have the power, with the concurrence of the President, to assume to himself all or any of the functions of the Government of the State, except those of the High Court,
(iv) The Union shall have no power to make a Proclamation of Financial Emergency with respect to the State of Jammu and Kashmir under Art. 360 (v) Articles 356-357 relating to suspension of constitutional machinery have been extended to J & K by the Amendment Order of 1764.
Fundamental Rights and the Directive Principles:
The provisions of Part IV of the Constitution of India relating to the Directive Principles of State Policy do not apply to the State of Jammu & Kashmir. The provisions of Art. 19 are subject to special restrictions for a period of 25 years. Art. 19(1) (f) and 31(2) have not been omitted, so that the fundamental right to property is still guaranteed in this State.
Separate Constitution for the State:
While the Constitution for any of the other States of the Union of India is laid down in part VI of the Constitution of India, the State of Jammu & Kashmir has its own Constitution (made by a separate Constituent Assembly and promulgated in 1957).
Procedure for Amendment of State Constitution:
While an Act of Parliament is required for the amendment of any of the provisions of the Constitution of India the provisions of the State Constitution of Jammu & Kashmir (excepting those relating to the relationship of the State with the Union of India) may be amended by an Act of the Legislative Assembly of the State, passed by a majority of not less than two-thirds of its membership; but its such amendment seeks to affect the Governor or the Election Commission, it shall have no effect unless the law is reserved for the consideration of the President and receives his assent.
It is also to be noted that no amendment of the Constitution of India shall extend to Jammu & Kashmir unless it is so extended by an Order of the President under Art. 370(1).
Alteration of Area Boundary:
No alteration of the area of boundaries of this State can be made by Parliament without the consent of the Legislature of the State of J & K.
By amendments of the Constitution Order, the jurisdictions of the comptroller and Auditor-General, of the Election Commission, and the Special Leave Jurisdiction of the Supreme Court have been extended to the State of Jammu and Kashmir.