Jammu & Kashmir
The formulation of Jammu and Kashmir as a single political and geographic entity dates back to the year of 16th March 1846 when the Amritsar treaty was signed between British government and Maharaja Gulab Singh. After the formation of the state, the significant parts which it comprised were Jammu, Kashmir and Ladakh.
At the time when India attained its independence, there existed a scenario where Indian sub-continent had 564 princely states, most of these princely states agreed to merge with the Indian territory, while certain others, The Nizam of Hyderabad, Nawab of Junagad and Hari Singh of Kashmir did not agree to merge with India regardless of numerous efforts made by Vallabhai Patel for the same.
After the colonial rule of the British was brought to an end, the country was divided into two parts, that is- India and Pakistan. Now, the princely states which existed in the Indian sub-continent had an option of either parting with India or Pakistan.
Mohammad Ali Jinnah was quite assertive about Kashmir parting with Pakistan, and he supported his assertion with the logical reasoning of majority of the population in Kashmir being Muslims, it would be ideal for the state to part with Pakistan.
But Maharaja Hari Singh had offered proposals of Standstill Agreement sent to both India and Pakistan, which indicated that Kashmir had no intention of parting with either country.
After the signing of the Standstill Agreement, there was a tribal revolt known as Poonch Uprising which broke out in Kashmir. The revolt was planned by Pakistan and an assent was given to the same in order to gain control over the territory of Jammu and Kashmir. The main objective behind the revolt was to oust Hari Singh from Kashmir.
Following the outburst there was pressure mounted on Hari Singh to protect Kashmir and its people. Hari Singh sought the help of India. In response to this India put forth the condition for Hari Singh to sign the Instrument of Accession in order to avail India’s help. It was on October 26th 1947, that the Instrument of Accession was signed by Hari Singh, following which Jammu and Kashmir became a constitutional and legal part of India, with certain special provisions like that of having its own constitution.
Article 370 was enforced from 26th January 1950 for temporary regulation of the constitutional relation between India and the State of Jammu and Kashmir.
The Constitution of Jammu and Kashmir was adopted on 17th November 1956 and was in effect from 26th January 1957. It was the only state in the country to have its own Constitution and had special status compared to the other Indian States.
What is Article 370 of Indian Constitution?
Article 370 of the Constitution was a temporary provision which grants special status to the State of Jammu and Kashmir.
According to Article 370 :-
- Article 238 does not apply to Jammu and Kashmir.
- It restricts Parliament’s legislative powers in respect of Jammu and Kashmir. Which helped the State to have total control over 94 items out of 97 items of the Union List except in the matters related to defense, foreign affairs, finance, and communication. Parliament needs to take State government approval for the implementation of any of the above 94 items.
- Article 1 and Article 370 apply to the state. Other Constitution provisions apply with exceptions and modifications specified by the President. Consultation with the State government is required for Instrument of Accession matters.
Article 370 is temporary in the sense that the Constituent Assembly of Jammu and Kashmir have the right to modify, delete, and retain it.
Features of Article 370 and Jammu & Kashmir Constitution
- Jammu and Kashmir have a Separate Constitution.
- The name, territory or boundary of the state of Jammu and Kashmir cannot be changed without the prior permission of the state legislature.
- Part VI of the Indian Constitution which deals with the state government is not applicable to the state of Jammu and Kashmir.
- Directive principles of State policy and Fundamental Duties are not applicable .
- Financial Emergency cannot be imposed in the state of Jammu and Kashmir.
- High courts of Jammu and Kashmir do not have the authority to issue writs in matters other than Fundamental Rights.
- Fifth Schedule and Sixth Schedule of the Indian Constitution are not applicable.
- 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.
- Right to Education is not extended to the State of J&K.
- The only Indian State that has its own official flag.
- Land or Property of this state cannot be purchased by the Indians of other states.
What is Article 35 A of Indian Constitution?
Article 35A is the provision which decides who all are the persons who would be called the ‘permanent residents’ of the State of Jammu & Kashmir. The people who come under the ambit of permanent residents are having privileges of acquisition of property in the state, government jobs, public sector jobs, scholarships in education and also public welfare and public aid.
Abrogation of Article 370
On August 05, 2019, Article 370 ceased to be operative under the Constitution of India. The Government of India has revoked the special status of Jammu and Kashmir.
How abrogation is done?
The Constituent Assembly of Kashmir was dissolved in 1957 without making any recommendation for amendment or abrogation of Article 370.
Article 367 is also an interpretation clause of the Constitution and added a new sub-clause 4(d). According to this amendment clause, “Constituent Assembly” under Article 370(3) must be read as “Legislative Assembly of the State”. Due to this now the J&K Assembly was allowed to recommend abrogation of Article 370.
Jammu and Kashmir were under the Presidential Rule, therefore, Parliament had made the recommendation to the President to abrogate Article 370.
Now Jammu & Kashmir is a Union Territory.