special status of Jammu & Kashmir

In this article, Alankrita of NUSRL discusses the reason behind special status of Jammu & Kashmir.

Historical Background

Jammu & Kashmir has the contrast of being the only state in the Indian Union that negotiated in terms of accession. The then ruler (Maharaja Hari Singh) of Jammu & Kashmir at the time of independence from the British rule decided not to join either India or Pakistan and thereby remain independent. But then after 2 months on 6th October 1947, the border areas (some of which is now called PoK) of Jammu & Kashmir were attacked by the Azad Kashmir Forces supported by the Pak Army. Subsequently, after the attack, the ruler decided to join India because of their own lack of Army and Weapons. So in October 1947, accession was made by the ruler considering certain promises made by Pt. Jawahar Lal Nehru(The then Prime Minister of India). It was the aftereffect of these promises that Article 370 was included in the constitution of India. And only matters related to Defense, Foreign relations, Communication and Finance of Jammu & Kashmir comes under the jurisdiction of Constitution of India.

Thus, the special power and autonomous status give the state of J&K the right to have its separate constitution and flag, unlike others.

What is a Special Status?

A State is said to have special status if all the provisions of a Union don’t apply to that state. Different states may have different provisions. Article 370[1] of the constitution of India gives such special status to the state of Jammu and Kashmir. Article 371 of the Indian Constitution provides special status to 10 other states which are Assam, Nagaland, Sikkim, Manipur, Mizoram, Goa, Andhra Pradesh, Arunachal Pradesh, Maharashtra and Gujarat.

What is the special status of Jammu & Kashmir?

As the ruler of Jammu & Kashmir entrusted only four matters i.e. Defense, Foreign Relations, Communication and Finance to the dominion of India and hence there is a limitation put on Parliament to make laws in the Union List and the Concurrent list for those matters only which falls under the above four. Any law in relation to other matters other than these four has to be ratified by the state legislature of Jammu & Kashmir. This concludes that President can extend other articles to the State of Jammu & Kashmir despite the fact that it has freedom from some provisions of the constitution of India. Thus, under part XXI of the Indian Constitution which deals with temporary, transitional and special provisions Jammu & Kashmir has been granted special status under Article 370.

The Constitution of J & K

The Constitution of J&K is different from that of other states in the following aspects:

Fundamental Rights, DPSP & Fundamental Duties

  • Part IV Principles of State Policy (DPSP) and Part IVA i.e. Fundamental Duties are not applicable to the State of Jammu & Kashmir where on the other hand it is applicable to other states. DPSP actually means that the states are required to do some things for the welfare of the community.
  • Fundamental Right to Property is still guaranteed in J&K i.e. Articles 19(1)(f) and 31(2) of the Indian Constitution are applicable in this state.
  • The only Fundamental Right which has been added in the history of Indian Constitution which Right to Education is not extended to the State of J&K.
  • A special constituent assembly set up by the State has framed a separate constitution of this state and it is the only Indian State that has its own official flag.
  • It is the only state which does not have to provide a detailed record of money flowing in the state and where and how is it used.
  • Land or Property of this state cannot be purchased by the Indians of other states.

Without the consent of state legislature, Parliament cannot make any law relating to:

  • Modification of name or territories of the state.
  • The international agreement affecting the final settlement of any part of the territory of the state.

-In respect of J&K, the residuary power is with the state government and not with the Union of India.

-The permanent residents of the J&K state have been granted with some special provisions with respect to employment under state; settlement of the state; attaining of immovable property in state etc.

-Any amendment in the Constitution of India cannot extend to J&K unless it is extended under Article 370(1) by the order of the president.

Emergency Provision

  • President cannot declare an emergency under Article 352 of the constitution of India for the state of Jammu & Kashmir without the consultation of the State Governor.
  • Financial emergency (allowances reduction & salaries) under Article 360 cannot be declared by the Union of India in relation to J&K. Only in a situation of War and External Aggression, the Union can declare an emergency.
  • Governor’s rule has to be imposed for breaking down the constitution of the state of Jammu & Kashmir. Thus on the ground of failure to comply with the directions, the Union has no power to suspend the constitution of the State.

High Court of J&K

Limited power rests with the High Court of J&K as compared to other High Courts within India. It doesn’t have the power to declare any law unconstitutional and also it can issue writs only for the enforcement of fundamental rights, unlike other High Courts which can issue writs under Article 226 in relation to other matters also.

Official Languages

The official language of the state is Urdu but for official purposes, the use of English is permitted unless the state legislature provides otherwise. Provisions of Part XVII is applicable only partly to J&K. It is applicable only when it relates to:

  1. The Official language of the Union.
  2. The official language for communication between one state and another; or between a state and the Union.

iii. The Language of the proceedings in Supreme Court.

Relations with Pakistan Occupied Kashmir

  • Pakistan administered Kashmir is defined as “Pakistan occupied Territory” under Article 48 of part VI of the J&K constitution.
  • Also, there is a provision of 24 seats in the J&K state assembly for the Pakistan administered Kashmir under Article 48 of the J&K constitution.

Procedure for Amendment of State Constitution

The provisions of the Constitution of the State can be amended by the Legislative Assembly Act of the state passed by not less than two-thirds of the total members. President’s approval is needed to come into effect if an amendment seeks to affect the Governor or Election Commission. Extension of Amendment to the State of J&K can only be done by an order of the President under Article 370(1). Whether Article 370 can be amended when the constituent assembly of the State no longer exists is still a debatable question.

Incorporation of Article 35A in the Indian Constitution

Whether the president has the power to amend the constitution?

Article 35A has been incorporated in the Constitution by Presidential Order which states about the rights and privileges of the permanent resident of the Jammu and Kashmir which exclude any person from all State’s benefits who is not the permanent resident of the State.

Now the question arises that whether the President of India has the power to amend the Constitution? It is observed that under Article 123, the president of India has power to make ordinance in the case of urgency when either house of the parliament is not in session and that too for a shorter period i.e. for a period of six months. It is an exception in making a law, not a general rule or permanent measure. Then nowhere in Article 370, the President of India has the power to amend the constitution or insert a new article. It gives power to the president only to make exceptions or modifications with the concurrence of the Government of state. And under 368 the Parliament has the power to amend the constitution and the president does not have the power to amend. In Re Delhi Laws Act[2] it was held that the word ‘modify’ means the only alteration without radical transformation. But in Puranlal Lakhanpal v. President of India & Ors.[3] it was held by the court that the president had the power to make the modification and that the word modification can be interpreted to include ‘radical transformation’ and also it is considered that the widest meaning should be given to the word ‘modification’ and in that sense, it should include the amendment.

Therefore, we can conclude that the president has the power to make radical transformations as there is no reason to limit the meaning of the word ‘modification’ under Article 370(1) of the Indian constitution.

Demand for Abolition of Article 370

There are arguments provided by both, those who are in favour of and those who are against the abolition of this Article. Those who are in favour say that it has designed certain mental barriers. It is also claimed by them that it the root cause of all the problems in the state of J&K. Also, it is believed that it is Article 370 which encourages extremists activities in J&K and other parts of the country. It is also argued that it was a temporary arrangement and it was supposed to wear down gradually and that it is like a reminder to the Muslims of J&K that they still have to coalesce with the rest of the country. Also, the people who are against Article 370 provide reasons that it should be abolished s in order to promote National Integration and they cite this by a slogan i.e. “One Nation, One Citizenship”.

Whereas on the other hand, those who are against the abolition of this Article argue that it will have serious consequences. It is contended that it will encourage extremist to demand election which will lead to the internationalization of the issue of J&K. It is further argued that the contention that it will give rise to extremists activities is groundless as the states which don’t have any special status like the state of Assam and Punjab have also faced such problems. It will not only violate the grave undertaking given by India through accession but would also give unnecessary distrust in the minds of the people of J&K, making the issue more sensitive.

Conclusion

As per what constitutional experts say Article 370 should not be repealed or abolished. Rather it should be extended to the remaining states of India. Extension of such a provision to other states would provide greater freedom to them for making laws. And such an Autonomy will give greater scope for development. But for doing this centre should continue to support backward states which are ponderously dependent on Central Government Aid.

Also, Armed Forces Special Powers Act (AFSPA) has been enforced in Jammu & Kashmir since 1990, which gives provides special power to Indian security forces. Therefore a special status should be there if such a rule is implemented as it cannot be denied that it is a disturbed zone. Also, this rule is not helping the state as it doesn’t permit any person living outside the territory of J&K to buy any property here which eventually hampers the development scene of the state and that is why the state lags behind in Industrial growth. There are lesser job opportunities for people and as no outside companies can set up here, therefore it leaves a blank in the infrastructure scene.

[1] Indian Constitution,1949 art 370

[2] 1951 AIR 332

[3] 1951 AIR 332

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