Special Status of Jammu & Kashmir – Article 370

article 370 section 35a jammu and kashmir of indian constitution

• Under Article 1 of the Indian Constitution, the State of Jammu and Kashmir (J&K) is a constituent state of Indian Union and its territory forms a part of the territory of India.
• Article 370 in Part XXI of the Constitution grants a special status to it.
• Accordingly, all the provisions of the Constitution of India do not apply to it.
• It is also the only state in the Indian Union which has its own separate state Constitution
• Under the same Part (XXI) of the Constitution, 12 other states also enjoy special status but only in certain minor matters
• Article 35A in Part III empower Constituent Assembly of J&K to define Permanent Resident.

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Accession of J&K to India

• State of Jammu and Kashmir became independent on 15 August 1947
• Its ruler, Maharaja Hari Singh, decided not to join India or Pakistan
• On 20 October 1947, the Azad Kashmir Forces supported by the Pakistan army attacked the state.
• The ruler of the state decided to accede the state to India.
• The ‘Instrument of Accession of Jammu and Kashmir to India’ was signed by Jawaharlal Nehru and Maharaja Hari Singh on 26 Oct 1947
• Govt. of India made a commitment that, the people of J&K through their own Constituent Assembly would determine the internal Constitution of this state
• They will also decide the extent of the jurisdiction of the Union of India over the state
• Until the decision of the Constituent Assembly of the State, the Constitution of India could only provide an interim arrangement regarding the state
• As per the commitment, Article 370 was incorporated in the Constitution of India.
• It clearly states that the provisions with respect to the State of J&K are only temporary and not permanent.
• It became operative on 17 November 1952
• J&K was specified in the category of Part B states in the original Constitution
• The power of Parliament to make laws for the state is limited to those matters which specified in the state’s Instrument of Accession
• Instrument of Accession contained matters classified under 4 heads
  • External  affairs
  • Defence
  • Communications
  • Ancillary  matters
• The provisions of Article 1 and Article 370 are applicable to the State of J&K
• Other provisions of the Constitution can be applied to the state with such exceptions and modifications as specified by the President in consultation with the state government
• President can declare that Article 370 ceases to be operative or operates with exceptions and modifications.
• This can be done by the President only on the recommendation of Constituent Assembly of the state.
• Article 370 makes Article 1 and Article 370 itself applicable to the State of J&K

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Relationship between J&K and India

• As per Article 370 (1) (d) President issued the Constitution (Application to Jammu and Kashmir) Order, 1950, to specify the Union’s jurisdiction over the state
• In 1952, the Govt. of India and the State of J&K entered into an agreement at Delhi
• In 1954, the Constituent Assembly of J&K approved the state’s accession to India as per the Delhi Agreement.
• President issued another order with the same title Constitution (Application to Jammu and Kashmir) Order, 1954.
• This order incorporated Article 35A in Indian Constitution
• It superseded the earlier order of 1950
• This is the basic order that, as amended and modified from time to time, regulates the constitutional position of the state and its relationship with the Union.

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article 370 section 35a jammu and kashmir of indian constitution

Present Relationship (before 5th Aug- 2019)

• Jammu and Kashmir is a constituent state of the Indian Union
• Its placed in Part I and Schedule I of Constitution of India
• Its name, area or boundary cannot be changed by the Union without the consent of its legislature.
• The State of J&K has its own Constitution
• It is administered according to that Constitution.
• Part VI of the Constitution of India (dealing with state governments) is not applicable to J&K
• Definition of ‘state’ under this part does not include the State of J&K
• Parliament can make laws on most of the subjects of Union List and on a good number of subjects of Concurrent List
• Residuary power belongs to the state legislature except
  • Prevention of activities involving terrorist acts
  • Questioning or disrupting the sovereignty
  • Territorial integrity of India
  • Causing insult to the National Flag, National Anthem and the Constitution of India.
• Power to make laws of preventive detention in the state belongs to the state legislature.
• Fundamental Rights is applicable to the state with some exceptions and conditions.
• Fundamental Right to Property is still guaranteed in the state
• Certain special rights are granted to the permanent residents of the state
  • Public employment
  • Acquisition of immovable property
  • Government scholarships
• Directive Principles of State Policy and Fundamental Duties are not applicable to the state
• A National Emergency declared on the ground of internal disturbance will not have effect in the state except with the concurrence of the state government.
• President has no power to declare a financial emergency in the state.
• President has no power to suspend the Constitution of the state on the ground of failure to comply with the directions given by him
• 2 types of Emergencies can be declared in the state
  • President’s Rule under the Indian Constitution
  • Governor’s Rule under the state Constitution
• An amendment made to the Constitution of India does not apply to the state unless it is extended by a presidential order.
• The special leave jurisdiction are applicable to the state
  • Supreme Court jurisdictions
  • Election Commission
  • Comptroller and auditor general
• High Court of J&K can issue writs only for the enforcement of the fundamental rights and not for any other purpose
• The provisions regarding the denial of citizenship rights of migrants to Pakistan are not applicable to the permanent residents of J&K

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Before & After 5th Aug- 2019

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article 370 section 35a jammu and kashmir of indian constitution

Features of J&K Constitution

• In Oct 1951, the Constituent Assembly of J&K was elected by the people of the state on the basis of adult franchise
• This sovereign body met for the first time on 31 Oct 1951
• It took about five years to complete its task
• Constitution of J&K was adopted on 17 Nov 1956, and came into force on 26 January 1957
• It declares the State of J&K to be an integral part of India.
• The state also includes the area of PoK
• Article 35A of the Indian Constitution empowers the J&K to define “permanent resident”
• It lays down that a citizen of India is treated as a ‘permanent resident’ of the state if on 14 May 1954
  1. He was a state subject of Class I or Class II, or
  2. Having lawfully acquired immovable property in the state
  3. He has been ordinarily resident in the state for 10 years prior to that date, or
  4. Any person who before 14 May, 1954 was a state subject of Class I or Class II and having migrated to Pakistan after 1 March 1947, returns to the state for resettlement
• Any change in the definition of ‘permanent’ can be made by the state legislature only.
• It provides for a bicameral legislature consisting of the legislative assembly and the legislative council.
• The assembly consists of 111 members directly elected by the people.
• Out of this, 24 seats are to remain vacant as they are allotted for PoK.
• It provides for Governor’s Rule.
• Failure of governmental function results in Governor’s rule
• It imposed by invoking Section 92 of the Constitution of J&K
• Governor, with the concurrence of the President of India, can assume to himself all the powers of the state government, except those of the high court.
• He can dissolve the assembly and dismiss the council of ministers.
• If it is not possible to revoke Governor’s rule within 6 months of imposition, the President’s Rule under Article 356 of the Indian Constitution is imposed
• It was imposed for the first time in 1977.
• J&K Constitutional amendment bill need to passed in each house of the state legislature by a majority of two-thirds of the total membership of that house.
• Such a bill must be introduced in the assembly only.
• However, no bill of constitutional amendment can be moved in either House if it seeks to change the relationship of the state with the Union of India.
• J&K Constitution declares Urdu as the official language

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article 370 section 35a jammu and kashmir of indian constitution

J&K Autonomy Resolution Rejected

• On June 26, 2000, in a historic move, the J&K Legislative Assembly adopted by voice vote
• A resolution accepting the report of the State Autonomy Committee
• It recommended greater autonomy to the State
• On July 14, 2000, the Union Cabinet rejected as unacceptable the June 26 autonomy resolution of the J&K Assembly
• The Cabinet found the June 26 resolution unacceptable because essentially it was a plea for restoration of the pre-1953 status to the state.

article 370 section 35a jammu and kashmir of indian constitution

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