Special Status of Jammu and Kashmir

This article titled ‘Special Status of Jammu and Kashmir.’ is written by Mayank Shekhar and discusses Article 370 and its aborgation.

I. Introduction

The Part XXI of the Constitution of India dealt with “Temporary, Transitional and Special provisions”, Article 370 was a temporary provision granting special autonomous status to the state of Jammu and Kashmir.

The Temporary, Transitional and Special provisions were provided in part XXI of our constitution’ Article 370 dealt 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 had been maintained till 2019, and all the provisions of the Constitution of India related to the States in the First Schedule were not applicable to Jammu & Kashmir. The state even had its own Constitution.

II. As per the provisions of Article 370

No law passed by the Parliament regarding the state of Jammu and Kashmir could be applied to the state without the Order of President of India in concurrence of the State government. No such conditions existed 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 the plebiscite and the special status of Jammu and Kashmir would 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 was the only state in the country having a Constitution of its own within the framework of the Indian Union.

III. 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 parts 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 the 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 its entirety. Further, Part XI (Relations between the Union and the States) and the 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 had been removed and Jammu and Kashmir had a Governor and a Chief Minister like other States.

IV. Special Position of Jammu & Kashmir

The whole state of Jammu and Kashmir enjoyed a special status among the states in India under Article 370 of the Constitution. This state enjoyed a 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 the Dominion of India by signing the Instrument of Accession on October 26, 1947.

India agreed to accept the accession of Jammu and Kashmir at 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 the Dominion of India. With the implementation of the Constitution in 1950, the state of Jammu and Kashmir was included in Part B of the First Schedule.

Despite being a member of the Part B 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 part B. These were incorpo­rated in 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 the people of the state.

The aim of the Constituent Assembly was to write the constitution of the state and demarcate the jurisdiction of the 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 that 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 suspension of this article cannot be done without the 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 to the recommendations of the Constituent Assembly by making the 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 superseded 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 brought 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 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.

V. Special Relationship of J&K with the Indian Union

(i) J&K had its own Constitution framed by a special Constituent Assembly set up by the State.

(ii) Parliament could not 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 rested 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 were not applicable to the State of J&K.

(v) The provisions of the Indian Constitution regarding denial of citizenship to a person who migrated to Pakistan did not apply to Permanent residents of J&K who after having migrated to the territory, now included in Pakistan, returned 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 was be deemed to be a citizen of India.

(vi) Certain special rights were 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 could have an effect on the State of J&K without the State Government’s concurrence.

(viii) The Union had 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 with the power to legislate for the State during an 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 did not apply to J&K.

(x) No amendment of the Constitution of India could 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 enjoyed very limited powers. It could not declare any law unconstitutional or issue writs, except for the enforcement of the Fundamental Right.

VI. Jurisdiction of Parliament

It was confined to the matters enumerated in the Union List, and the Concurrent List, subject to certain modifications, while it could 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 belonged to the Legislature of that State, excepting certain matters, specified in 1969, for which Parliament had 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 could extend to that State.

By the Constitution (Application to Jammu and Kashmir) Order, 1986, however, Art. 249 had been extended to the State of Jammu & Kashmir, so that it would 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 the passing of a resolution in the Council of States.

VII. Autonomy of the State in Certain Matters

The plenary power of the Indian Parliament was also curbed in certain other matters, with respect to which Parliament could not make any law without the consent of the Legislature of the State of Jammu and Kashmir, where that State was 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 was not enjoyed by the other States of the Union, thus,

1. No Proclamation of Emergency made by the President under Art. 352 on the ground of internal disturbance had effect in the State of Jammu & Kashmir, without the con­currence of the Government of the State,
2. Similarly, no decision affecting the disposition of the State could be made by the Government of India, without the consent of the Government of the State,
3. The Union had 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.

(iii) In the event of a breakdown of the constitutional machinery as provided by the State Constitution, it was the Governor who had 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 had 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 had been extended to J & K by the Amendment Order of 1764.

VIII. Fundamental Rights and the Directive Principles

The provisions of Part IV of the Constitution of India related to the Directive Principles of State Policy did not apply to the State of Jammu & Kashmir. The provisions of Art. 19 were subject to special restrictions for a period of 25 years. Art. 19(1) (f) and 31(2) had not been omitted so that the fundamental right to property was still guaranteed in this State.

IX. Procedure for Amendment of State Constitution

While an Act of Parliament was 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) could 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 if such an amendment was to affect the Governor or the Election Commission, would have no effect unless the law was reserved for the consideration of the President and received his assent.

X. Alteration of Area Boundary

No alteration of the area of boundaries of this State could be made by Parliament without the consent of the Legislature of the State of J&K.

XI. Other Jurisdictions

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 had been ex­tended to the State of Jammu and Kashmir.

XII. Current Status of J&K

On August 5, 2019, the President of India, Ram Nath Kovind in the exercise of the powers provided under Article 370(1) issued the Constitution (Application to Jammu and Kashmir) Order, 2019, C.O. 272 which took away the special status granted by Article 370 to the state of J&K. By the extension of this order all provisions of the Constitution have been extended to the state of Jammu and Kashmir.

Since the Government could not abrogate some of the articles directly by 370(3), it utilized its powers under Article 370(1) to amend Article 367, the interpretation clause to replace any reference to the Government of J&K in article 370 with Governor of J&K.

Article 35A which found its roots in Article 370 and regulated the permanent residence and rights and regulations related to it has been abrogated by the order of the President. It was discriminatory in nature as women who married non-residents or those who did not hold permanent residence in Kashmir lost their permanent residence and rights related to purchasing property in the state.

Now all the provisions of the Constitution including fundamental rights have been extended to the state of J&K. Further the abrogation of 35A according to the Government will allow space for industrial boom and influx of investments in the state which will further increase employment.

During the same period, the Indian Parliament also passed the J&K Reorganisation Act, 2019 which further divided the State into two Union Territories- 1. J&K and 2. Ladakh to be governed under the Lt. Governor. This reorganisation took effect on 31 October 2019.

J&K now has a legislature with an elected legislative assembly and chief minister while the Ladakh region will operate without a legislature. Thus, now J&K is no more a special state and the provisions of the Constitution of India apply to it with full effect. It is now a Union Territory under the administrative control of the Lt. Governor.

---

References

1. Jammu Kashmir no more a state; Union Territories of J-K and Ladakh come into existence, Available Here.

2. Jammu and Kashmir bifurcated: India has one less state, gets two new Union Territories in J&K, Ladakh, Available Here.

3. Laya Maheshwari, How the Indian Government Changed the Legal Status of Jammu and Kashmir, Available Here.

4. INSIGHTSIAS, Insights into Editorial: This is what has changed in Jammu and Kashmir, Available Here.

5. BYJU’S, Special Status Of Jammu And Kashmir, Available Here.

6. Drishti IAS, Delimitation in Jammu and Kashmir, Available Here.

---

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination