Special Provisions for Jammu and Kashmir in the Constitution of India

This is a simple and comprehensive understanding of the history and current status of the Special Provisions embedded in the Constitution of India for the State of Jammu and Kashmir.

As a historical legacy, the Jammu and Kashmir conflict has been an unresolved issue for more than half a century.”

Introduction

Jammu and Kashmir is the most controversial State in the Union of India because of its immense strategic importance. It shares boundaries with 3 countries: India, Pakistan, and China. It was also the last kingdom to sign the instrument of accession with India under the clouds of extremist threats from Pakistan. Owing to the reluctant accession, the ruler of Jammu and Kashmir pushed for a special provision that was embedded in the Constitution of India, 1950 for the protection of rights of his subjects.

Articles 369 to 393 deal with temporary and transitional provisions in the Constitution of India. Article 370 grants special status to the state of Jammu and Kashmir because of commitments made by the Indian government to the ruler of the state of Jammu and Kashmir at the time of its accession to India.

Hence the State of Jammu and Kashmir although a part of the Indian Union enjoys a status different from other states in the following respects-

  1. It has its own Constitution and its administration is carried in accordance with this Constitution.
  2. Power of Parliament to make laws is limited.
  3. Matters regarding the Union and Concurrent list in consultation with the government are declared by the President to correspond to matters specified in the instrument of accession.
  4. Such other matters in the Union and Concurrent list only with the concurrence of the government of the state the President may by order specify.

3. The provision of Article 1 and this Article shall apply concurrently on J&K.

The Supreme Court has previously held that a presidential order may extend provisions of the Indian Constitution to J&K as deemed fit.

Presidential Order, 1954

  1. The Constitution should be operative.
  2. Jurisdiction of Supreme Court extends to those states but not Art. 135 and 139.
  3. Can make laws on entries in the Union and Concurrent list.
  4. Emergency provisions under Art.352 can be applied with the consent of the state.
  5. President’s Rule under Art.356 is applicable but not that of Art. 360 (financial emergency).
  6. Executive power extends to Jammu and Kashmir.
  7. Freedom of trade, commerce and intercourse, services and citizen apply to the state.
  8. The election-related provisions are applicable to Jammu and Kashmir.
  9. The Directive Principles of State Policy does not apply to Jammu and Kashmir.
  10. Article 368 of the Constitution of India shall not apply to Jammu and Kashmir until the Presidential order is made.
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These special provisions came into force in 1954 and haunt the secularism and unity of the nation to date. With the current radical conditions in J&K, it is imperative to reflect on the existence of such provisions. We need to look forward to the abolishment or amendment of the same.

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