Question

Who is provisions reflect special status of jammu and kashmir?

Answer 1

The Temporary, Transitional and Special provisions are provided in part XXI of our constitution’ Article 370 deals with the State of Jammu & Kashmir which forms a part of the ‘territory of India’ as defined in Article 1 of the Constitution, being the fifteenth State included in the First Schedule of the Constitution, as it stands amended.

Nevertheless, the special Constitutional posi­tion which Jammu & Kashmir enjoyed under the original Constitution has been maintained, so that all the provisions of the Constitution of India relating to the States in the First Schedule are not applicable to Jammu & Kashmir. This is the only State which has its own Constitution.

Regarding Jammu and Kashmir:

No law passed by the Parliament regarding the state of Jammu and Kashmir can be applied to the state without the Order of President of India in concurrence of the State government.

No such conditions exist in the case of other states. In the original Constitution of Jammu and Kashmir, the provisions of Article 370 were described as “temporary” measures. Under the agreement of 1975 signed between Sheikh Abdullah and Indira Gandhi it was agreed upon that Abdullah will give up the demand for plebiscite and special status of Jammu and Kashmir will continue; it would no longer remain a temporary measure.

But the agreement could not be implemented owing to the differences and the Order of the President could not be issued. Jammu and Kashmir is the only state in the country having a Constitution of its own within the framework of India Union.

The important provisions of the Constitution of Jammu and Kashmir can be summarised as follows:

(i) Territory of Jammu and Kashmir consists of all those areas which were under the sovereignty of erstwhile ruler. These areas include that territory which is at present under the occupation of Pakistan.

(ii) Out of 123 assembly seats of Jammu and Kashmir, 25 allotted to the Pakistan occupied portion of Kashmir, remain vacant because the situation is unsuitable for the election there;

(iii) Though the executive and legislative powers of the State government cover the entire state, yet these powers do not apply to those areas which come under the jurisdiction of Parliament;

(iv) The “permanent residents” of Jammu and Kashmir enjoys all rights which are guaranteed in the Constitution of the Country.

(v) A majority of not less than two-thirds of the members of the house can amend the Constitution by passing a bill. But the bill cannot make the changes in provisions relating to the relationship between the state and the Union.

The Course of Integration:

The constitutional relations between Jammu and Kashmir and India, originally based on the Instru­ment of Accession executed by the State, were reflected in the Constitution of India which made it clear that only two of its articles, viz.

Article 1, which declared Jammu and Kashmir to be a part of India’s territory and Article 370 which defined the State’s special status, would apply in full to this State. The Presidential Order of 26 January 1950 stipulated that the legislative authority of the Union Parliament would be confined, in respect of the state of Jammu and Kashmir, to those items of the Union and Concurrent Lists which corresponded to matters specified in the Instrument of Accession.

In effect, this meant that no laws passed by Parliament except those relating to any 36 to the 37 items in the Union List would be enforceable in Jammu and Kashmir. Naturally, Parliament was to have no residuary legislative jurisdiction; nor could Parliament’s laws on concurrent matters apply to this State except with its own concurrence. Of the 22 pars of the Constitution, as many as nine, including the Preamble, Part II (Citizenship), Part III (Fundamental Rights), Part XIII (Trade Com­merce and Intercourse within the Territory of India) Part XVIII (Emergency provisions) were wholly inapplicable to Jammu and Kashmir, the remaining thirteen parts being only partially applicable to it.

The above arrangement was to continue until the State elected its Constituent Assembly and the President of India abrogated Article 370 of the Constitution or modified it in accordance with the latter’s recommendations. The first major step in this direction was taken by means of Presidential Order issued in 1954.

This order determines the Constitutional relations of the State with India. Under this order the Preamble and parts I, II, and III of the Constitution of India were made appli­cable to Jammu and Kashmir with certain modifications. Part V of the Constitution was made appli­cable to the State in almost it’s entirely.

Thank you .