Special Status of Jammu And Kashmir (J&K)

  • At the present, the state of Jammu and Kashmir (J & K) enjoys a very special status, within the Indian Union. The status of J & K is governed by Article 370 of the Indian Constitution. Its status is different from the status of other constituent states.
  • Before independence of India, Jammu and Kashmir had been a native state. Kashmir did not accede to either of the succession States of India and Pakistan.
  • Almost immediately after independence invaders invaded Kashmir. Independence was no longer an option for King of Kashmir. Maharaja Hari Singh then acceded to India and sought India’s armed help to fight against invaders. On 26th October 1947, the Maharaja of Kashmir signed the instrument of accession to the Dominion of India
  • Kashmir was subsequently included in the First Schedule of the Indian constitution; Kashmir thus became a Part B State in the original constitution of India.
  • Kashmir, however, was not subjected to the constitutional obligations of other Part B States. The Government of India gave the solemn assurance that the political future of Kashmir should be decided by a Constituent Assembly of Kashmir.
  • As Dr. D.D. Basu holds, the State of Jammu and Kashmir holds a peculiar position under the Constitution of India. Only Articles 1 and 370 of the Indian Constitution apply of their own force to the State of Jammu and Kashmir.
  • A Very first act of the Jammu and Kashmir Constituent Assembly was to abolish the hereditary rule of the Maharaja. In 1954, the Jammu and Kashmir Constituent Assembly ratified the state’s accession to India. Thus, Jammu and Kashmir became an integral part of the Union of India. The Constituent Assembly of J.K. adopted a constitution for the state in 1957. Thus, the State of Jammu and Kashmir is the only state in the Indian Union to have a separate constitution of its own. For all other states, the Constitution of India is also their constitution.
  • The Constitution of Jammu and Kashmir makes the State an integral part of India.
  • The Union Parliament Can Legislate with regard to Jammu and Kashmir only on subjects enumerated in the central list, The Parliament shall have no jurisdiction over most matters mentioned in the concurrent list. The Parliament also does not have the competence to exercise residuary powers over Jammu and Kashmir with regard to powers in the state list, Art. 249 of the Constitution were originally not applicable to Jammu and Kashmir. But Article 249 has now been extended to Kashmir. A national emergency on grounds of internal disturbance under Article 352 does not extend to Kashmir. The national Government also does not have the power to suspend the Constitution of Jammu and Kashmir.
  • Fundamental rights under Part III and Directive principles under Part IV of the Constitution do not apply to the State of Jammu and Kashmir. Amendments to the constitution also do not automatically to the state of J.K. unless it is so extended by an order of the President.
  • The special status of the State of Jammu and Kashmir is a matter of acute political controversy in the Indian Political scene. There are parties which are committed to the abrogation of Article 370 of the Constitution to bring the state to a footing of equality with other States of the Union.

Article 370 embodied six special provisions for Jammu and Kashmir:

  1. It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
  2. Central legislative powers over the State were limited, at the time of the framing, to the three subjects of defense, foreign affairs, and communications.
  3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
  4. The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
  5. The State Government’s authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalized the scheme of powers and dispersed, no further extension of powers was possible.
  6. The Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.

 

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