Constitution of Jammu and Kashmir
Article 370 of the Indian constitution, which is of a temporary nature, grants special status to Jammu and Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the State of Jammu and Kashmir has been accorded special status under Article 370. Even though included in 1st Schedule as 15th state, all the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of Chief Minister.
- 1 Historical aspect
- 2 Special features
- 3 Jurisdiction of Parliament
- 4 Emergency Provisions
- 5 Fundamental Duties, Directive Principles & Fundamental Rights
- 6 Official Languages
- 7 Amendment of Article 370
- 8 Demand for Abrogation of Article 370
- 9 Implications of Article 370
- 10 See also
- 11 References
- 12 External links
When India and Pakistan gained their independence on 15 and 14 August 1947, respectively; J&K chose to remain independent. Maharaja Hari Singh (the then ruler of J&K) signed a standstill agreement with Pakistan. India refused to sign any such agreement. However, on 6 October 1947, Pakistani Muslim tribes, on account of hearing Maharaja's atrocities in Muslim dominated Poonch region, attacked Jammu and Kashmir. To save his state Maharaja chose to accede Jammu & Kashmir to India, so that India could help in defending her.
It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution.
Separate Constitution J&K is own. The Constitution of J&K was enacted by a separate Constituent Assembly set up by the State and it came into force on 26 January 1957.
Jurisdiction of Parliament
Union Legislature has very limited jurisdiction in case of J&K as compared to other states. Till 1963, Parliament could legislate on subjects contained in the Union List, and had no jurisdiction in case of Concurrent List under 7th Schedrest with J&K. The Parliament has no power to legislate Preventive Detention laws for the state; only the state legislature has the power to do so.
The Union of India has no power to declare Financial Emergency under Article 360 in the state. The Union can declare emergency in the state only in case of War or External Aggression. No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the state unless (a) it is made at the request or with the concurrence of the government of the 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 that state. In December 1964, Articles 356 and 357 were extended to the state.
Fundamental Duties, Directive Principles & Fundamental Rights
Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K. In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are still applicable to J&K; hence the Fundamental Right to property is still guaranteed in this state.It is the only state which does not have to give a detailed record on the money flowing in the state and where is it used and how. In the Indian Constitutional history only one Fundamental Right has been added so far and that is Right to Education. this right too is not extending to J&K.
Provisions of Part XVII of the Constitution apply to J&K only insofar as they relate to (i) the official language of the Union; (ii) the official language for communication between one state and another; or between a state and the Union; and (iii) language of the proceedings in the Supreme Court. Urdu is the official language of the state but use of English is permitted for official purposes unless the state legislature provides otherwise.
Amendment of Article 370
Under Article 370(3), consent of state legislature and the constituent assembly of the state are also required to amend Article 370. Now the question arises, how can we amend Article 370 when the Constituent Assembly of the state no longer exists? Or whether it can be amended at all? Some jurists say it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370(1). But it is still a mooted question.
Demand for Abrogation of Article 370
Equally valid arguments are forwarded by those in favour of and those against its abrogation. Those in favour argue that it has created certain psychological barriers. They say that it is the root cause of all the problems in J&K. They further believe that it is this Article 370 which encourages secessionist activities within J&K and other parts of the country. They say, at the time of enactment, it was a temporary arrangement which was supposed to erode gradually. They also argue that it acts as a constant reminder to the Muslims of J&K that they have still to merge with the country. Those against its abrogation forward the following arguments. They contend that that Abrogation will have serious consequences. It will encourage secessionists to demand plebiscite which will lead to internationalisation of the issue of J&K. They further argue that the contention of Article giving rise to secessionist activities is baseless as states like Assam and Punjab, which don’t have any special status have experienced such problems. It would not only constitute a violation of the solemn undertaking given by India through the instrument of accession, but would also give unnecessary misgivings in the minds of the people of J&K, making the issue more sensitive.
Implications of Article 370
This article specifies that except for Defence, Foreign Affairs, Finance and Communications,(matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, and Nagaland. The Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .
The 1974 Indira-Sheikh accord mentions that " The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India " .
Indian citizens from other states can not purchase land or property in Jammu & Kashmir