Special Status of Jammu & Kashmir

Under Article 1 of the Indian Constitution, Jammu & Kashmir (J&K) is a constituent state of the Indian Union, and its territory forms part of India's territory. However, Article 370, placed in Part XXI of the Constitution, confers upon J&K a special status that is qualitatively different from the limited special provisions extended to twelve other states (Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa, and Karnataka) under the same Part.

The most significant consequence of this special status is that not all provisions of the Indian Constitution apply to J&K. Additionally, J&K is the only state in the Indian Union to possess its own separate state Constitution - the Constitution of Jammu and Kashmir.

---

• With the lapse of British paramountcy, J&K became independent on 15 August 1947. Maharaja Hari Singh, the state's ruler, initially chose to remain independent and declined to join either India or Pakistan.
• On 20 October 1947, Azad Kashmir Forces backed by the Pakistani army launched an attack on the state's frontiers.
• Faced with this military emergency, Maharaja Hari Singh agreed to accede to India. The Instrument of Accession was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 1947, and accepted by Governor General Lord Mountbatten on 27 October 1947.
• Under this Instrument, J&K surrendered only three subjects to the Dominion of India: defence, external affairs, and communications.

The Commitment and Article 370

At the time of accession, the Government of India committed that the people of J&K, through their own Constituent Assembly, would determine the state's internal constitution and the scope of the Union's jurisdiction. Until the Constituent Assembly made its determination, the Indian Constitution would provide only an interim arrangement for the state.

This commitment was given constitutional form through the insertion of Article 370, which explicitly describes its provisions as temporary, not permanent. It became operative on 17 November 1952.

---

Article 370 lays down several important rules governing the relationship between J&K and the Union:

1. Article 238 (dealing with Part B states) was declared inapplicable to J&K. This Article was later omitted from the Constitution by the 7th Constitutional Amendment Act, 1956 following the reorganisation of states.

2. Parliament's legislative power over J&K is restricted to two categories:

   • Matters in the Union List and Concurrent List corresponding to subjects in the Instrument of Accession (defence, external affairs, communications, and ancillary matters) - declared by the President in consultation with the state government.
   • Other matters in the Union List and Concurrent List - applicable only with the concurrence of the state government.

3. Article 1 and Article 370 itself are directly applicable to J&K.

4. Other Constitutional provisions can be extended to the state only with such exceptions and modifications as specified by the President - in consultation with or with the concurrence of the state government.

5. The President can declare Article 370 inoperative or modified, but only on the recommendation of the Constituent Assembly of the state - a body which completed its work and was dissolved in 1957.

---

The constitutional relationship was progressively formalised through presidential orders:

• Constitution (Application to Jammu and Kashmir) Order, 1950 - first presidential order specifying Union's jurisdiction.
• Delhi Agreement, 1952 - a formal understanding between the Government of India and the State of J&K on their future relationship.
• 1954: The J&K Constituent Assembly approved the state's accession and the Delhi Agreement. The President then issued the Constitution (Application to Jammu and Kashmir) Order, 1954, which superseded the 1950 order. This 1954 Order, as amended over time (1963, 1964, 1965, 1966, 1972, 1974, 1986), remains the foundational instrument regulating J&K's constitutional position.

Key Features of the Present Relationship

Territorial Identity

• J&K is listed in Part I and Schedule I of the Constitution.
• Its name, area, or boundary cannot be altered by Parliament without the consent of its legislature.

Separate Constitution

• J&K has its own Constitution and is governed by it.
• As a result, Part VI of the Indian Constitution (dealing with state governments) does not apply to J&K. Even the definition of 'state' under Part VI excludes J&K.

Legislative Powers

• Parliament can legislate for J&K on most Union List subjects and many Concurrent List subjects.
• Residuary powers belong to the state legislature, except for matters such as prevention of terrorism, safeguarding India's sovereignty and territorial integrity, and preventing insult to national symbols.
• Preventive detention laws enacted by Parliament are not applicable to J&K; that power rests with the state legislature.

Fundamental Rights (Part III)

• Applicable, but with some exceptions and conditions.
• The Fundamental Right to Property continues to be guaranteed in J&K (unlike in the rest of India, where it was converted into a legal right).
• Permanent residents enjoy special rights in public employment, acquisition of immovable property, settlement, and government scholarships.

Non-Applicability of Key Constitutional Parts

• Part IV (Directive Principles of State Policy) - not applicable.
• Part IVA (Fundamental Duties) - not applicable.

Emergency Provisions - Critical Distinctions

• President's Rule was imposed in J&K for the first time in 1986; Article 356 was extended to J&K in 1964.
• Governor's Rule was first imposed in 1977.
• The President cannot suspend the J&K Constitution for failure to follow Union directions.

Other Significant Restrictions on Central Power

• Any international treaty affecting J&K's territory requires state legislature's consent.
• A Constitutional amendment does not automatically apply to J&K - it must be extended through a presidential order.
• Official language provisions apply only to the extent they relate to the language of the Union, inter-state/Centre-state communications, and Supreme Court proceedings.
• The Fifth and Sixth Schedules (dealing with scheduled areas, scheduled tribes, and tribal areas) do not apply.

Institutions Applicable to J&K

• The Supreme Court's special leave jurisdiction, the Election Commission, and the Comptroller and Auditor General all extend to J&K.
• The J&K High Court can issue writs only for enforcement of Fundamental Rights, not for any other purpose (unlike High Courts in other states).

Citizenship of Returning Migrants

• Permanent residents of J&K who had migrated to Pakistan and returned for resettlement are deemed citizens of India - the provisions of Part II denying citizenship to Pakistan migrants do not apply to them.

Summary of the Two Core Features

J&K enjoys far greater autonomy than any other state, while the Union's jurisdiction within J&K is significantly narrower than what it exercises over the rest of India.

---

Background

• The J&K Constituent Assembly was elected in September-October 1951 on the basis of adult franchise to draft the state's Constitution and settle its Union relationship.
• It first met on 31 October 1951 and completed its work over approximately five years.
• The Constitution of J&K was adopted on 17 November 1956 and came into force on 26 January 1957.

Salient Features

1. Integral Part of India: Declares J&K to be an integral part of India.

2. Justice, Liberty, Equality, Fraternity: Commits the state to securing these values for its people.

3. Territorial Claim: The state's territory is defined as all lands under the ruler's control on 15 August 1947 - which includes Pakistan-occupied territory.

4. Permanent Residents: A citizen of India qualifies as a 'permanent resident' of J&K if, on 14 May 1954, they were:

   • A State Subject of Class I or II, or
   • Had lawfully acquired immovable property and been ordinarily resident for 10 years prior to that date, or
   • Were a State Subject who migrated to Pakistan after 1 March 1947 and returned for resettlement.

5. Special Rights of Permanent Residents: Entitled to all rights under the Indian Constitution, but changes to the definition of 'permanent resident' can only be made by the state legislature.

6. Directive Principles: Included and treated as fundamental in governance, but not judicially enforceable.

7. Bicameral Legislature:

   • Legislative Assembly: 111 members directly elected; 24 seats remain vacant (allotted for Pakistan-occupied areas), making the working strength .

Structure at a Glance

Parts of the J&K Constitution:

---

On 26 June 2000, the J&K Legislative Assembly adopted (by voice vote) the report of the State Autonomy Committee, which sought a major restoration of autonomy. Key demands included:

• Replace the word 'temporary' in Article 370 with 'special'.
• Restrict Centre's jurisdiction to only defence, foreign affairs, communications, and ancillary subjects.
• Remove Article 356's applicability to J&K.
• Exclude the Election Commission of India from J&K.
• Give the J&K Assembly final say on emergency provisions.
• Phase out All-India Services (IAS, IPS, IFS) from the state.
• Restore designations of Sadar-e-Riyasat and Wazir-e-Azam.
• Create a separate charter of Fundamental Rights for J&K.
• Remove Supreme Court's special leave jurisdiction and appellate jurisdiction in civil/criminal matters.
• Remove Centre's role in disputes over inter-state rivers.
• Parliament not to be empowered to amend the Constitution with respect to J&K.

On 14 July 2000, the Union Cabinet rejected the resolution as unacceptable, finding it essentially a demand for restoration of the pre-1953 status to J&K. The Cabinet held that accepting even part of the resolution would reverse the process of integrating J&K's aspirations with national integrity.

---

• Appointed by the Central Government in October 2010 under the chairmanship of journalist Dileep Padgaonkar. The other two members were academician Radha Kumar and former Information Commissioner M.M. Ansari.
• Mandate: Wide-ranging discussions with all sections of opinion in J&K to identify a political solution.
• Report submitted to the Union Home Minister in October 2011, titled "A New Compact with the People of Jammu and Kashmir".

Key Recommendations

The Group did not recommend a simple return to the pre-1953 situation, warning that doing so would create a dangerous constitutional vacuum.

Instead, it recommended:

1. Constitutional Committee: Establish a committee headed by a distinguished jurist to review all Central Acts and Constitutional provisions extended to J&K after the Delhi Agreement of 1952. The Committee should complete its work within six months and operate by consensus. Recommendations would be incorporated through a presidential order under Article 370, ratified by a two-thirds majority in both Houses of Parliament and each House of the state legislature. Upon completion, Clauses (1) and (3) of Article 370 would cease to operate.

2. Article 370 Heading: Replace 'temporary' with 'special' in Article 370 and Part XXI, consistent with the usage in Articles 371 to 371-I for other states.

3. Governor's Appointment: The state government should submit a panel of three names to the President after consulting opposition parties; the Governor should hold office at the President's pleasure.

4. Article 356: Current arrangement to continue, but the Governor should keep the legislature under suspended animation and hold fresh elections within three months.

5. All-India Services (Article 312): Gradually reduce the proportion of AIS officers in favour of state civil service officers, without compromising administrative efficiency.

6. Nomenclature: Governor and Chief Minister titles to continue in English; Urdu equivalents may be used in Urdu communications.

7. Three Regional Councils: Create separate Regional Councils for Jammu, Kashmir, and Ladakh (the last being separated from Kashmir division), with devolved legislative, executive, and financial powers. Further devolution to Panchayati Raj institutions at all levels. MLAs to be ex-officio members with voting rights.

---

• Article 370 vs. Article 371: Article 370 grants J&K's special status (temporary, now contentious); Articles 371-371I grant minor special provisions to 12 other states - these are not comparable.
• Three vs. All Subjects: Under the Instrument of Accession, J&K surrendered only 3 subjects. Parliament's power over the rest required state concurrence.
• Part VI exclusion: J&K is the only state not governed by Part VI of the Indian Constitution.
• Emergency distinctions: Understand how each type of emergency applies differently to J&K vs. other states.
• Two types of rule: President's Rule (under Indian Constitution, since 1964) and Governor's Rule (under J&K Constitution) - both exist for J&K.
• Writ jurisdiction: J&K High Court issues writs only for Fundamental Rights - unlike other HCs which can also issue writs for 'any other purpose'.
• Constituent Assembly of J&K: Dissolved after adopting the Constitution in 1957. Since no Constituent Assembly exists, the presidential power under Article 370(3) to abrogate/modify Article 370 has been constitutionally debated.
• 1953 Watershed: Both the Autonomy Resolution and the Interlocutors' report centred around the pre-1953 vs. post-1953 constitutional framework - a recurring exam theme.
• Delhi Agreement, 1952: Cornerstone of the Centre-J&K relationship, later ratified by the J&K Constituent Assembly in 1954.