The state of Jammu and Kashmir holds a peculiar position under the constitution of India. Even though it forms a part of the ‘territory of India’ as defined in Art 1 of the constitution, all the provisions of the Constitution of India relating to the states in the First Schedule are not applicable to it.
The reason for this separate treatment is the presence of Article 370 in the Constitution which deals with “temporary provisions with respect to the state of Jammu and Kashmir”.
This was a “temporary provision” in that its applicability was intended to last till the formulation and adoption of the State’s constitution.
The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate Article 370 altogether.
However, the State’s constituent assembly dissolve itself on 25 January 1957 without recommending either abrogation or amendment of Article 370.
Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.
This has been undoubtedly the most controversial provision of the Constitution. This article has invoked massive opposition from a section of society. Dr. Shyama Prasad Mukherjee, one of BJP’s ideologue, who was strongly against this article once famously said, “A single the country can’t have two constitutions, two prime ministers, and two national emblems”.
Nevertheless, the special constitutional position which Jammu and Kashmir enjoyed under the original Constitution has been maintained.
The reason for this separate treatment was due to the fact that the state has acceded to India in extraordinary circumstances.
The government of India had declared that it was the people of the state of Jammu & Kashmir, acting through their constituent assembly, who were to finally determine the Constitution of the state and the jurisdiction of the Union of India. However, there is no doubt that by the act of Accession the State of Jammu & Kashmir became legally and irrevocably a part of the territory of India and that the government of India was entitled to exercise
jurisdiction over the state with respect to those matters to which the Instrument of Accession extended i.e. Defense, External Affairs and Communications On Analyzing Article 370 we understand that Article 370 embodied
Six special provisions for Jammu and Kashmir:
- It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
- Central legislative powers over the State were limited, at the time of the framing, to the three subjects of defence, foreign affairs, and communications.
- Other constitutional powers of the Central. The government could be extended to the State only with the concurrence of the State Government.
- The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
- 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.
- Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.
Therefore, the Articles of the Constitution of India which would apply of their own force to the state are Article 1 and 370.
The application of the other Articles was to be determined by the President in consultation with the government of the State.
The legislative authority of Parliament over the State, again, would be confined to those items of the Union and Concurrent Lists as corresponding to matters specified in the Instrument of Accession. In pursuance, if this, the President, in consultation with the State Government, made the Constitution (Application to Jammu & Kashmir). Order, 1954, which came into force on the 14th of May, According to this order, the jurisdiction of the Union extended to all Union subjects under the constitution of India (subject to certain slight alterations) instead of only the three subjects of Defense, Foreign Affairs and Communications with respect to which the
the state had acceded to India in 1947.
It has already been explained how from the beginning it was declared by the Government of India that, notwithstanding the Accession of the State of Jammu & Kashmir to India by the then Ruler, the future Constitution of the State, as well as its relationship with India, was to be finally determined by an elected Constituent Assembly of the State. With these objectives in view, the people of the State elected a sovereign Constituent Assembly which met for the first time on October 31, 1951. For the making of the permanent Constitution of the State.