Jammu and Kashmir Constitutional Provision

Jammu and Kashmir is a state in northern India, it is located mostly in the Himalayan mountains, and shares borders with the states of Himachal Pradesh and Punjab to the south. Jammu and Kashmir has an international border with China in the north and east, and the Line of Control separates it from the Pakistani-administered territories of Azad Kashmir and Gilgit-Baltistan in the west and northwest respectively. The state has special autonomy under Article 370 of the Constitution of India

Articles of Constitution applying to Jammu and Kashmi

  1. Art 1: Jammu and Kashmi is a part of the territory of India.
  2. Art 370: It was to be of a temporary measure until the people of Jammu and Kashmir ratify the accession. It says that the applicability of other articles of Constitution would be determined by president in consultation with the state government. Art 370 can be terminated / amended by a presidential notification only on the recommendation of the state legislature.

Constitutional Order of 1950

  1. Art 370 had said that the parliament would be competent to make laws on matters which had been agreed to in the instrument of accession until ratified by the constituent assembly of the state. This order specified defense, foreign affairs and communications as those subjects.

Delhi Agreement, 1952 / Constitutional Order of 1954

  1. It extended the parliamentary competence over Jammu and Kashmir to all matters in union list as against only the 3 specified in the Constitutional Order, 1950. Such an understanding was reached in Delhi in 1952 and was ratified by constituent assembly of Jammu and Kashmir in 1954 following which the Constitutional Order, 1954 was notified.

Jammu and Kashmir’s special position vis a vis other states

  1. Own state Constitution: It says the territory of state comprises of PoK also and this is immune from amendment. The state Constitution can be amended by 2/3rd of total strength of each house. Territory, relationship with India (extent of executive and legislative power of centre as applicable to state, Indian Constitution as applicable to state) cannot be amended. But an amendment seeking to impact the powers of governor or Election Commission will have to be reserved for presidential consideration who shall not be bound.
  2. Presidential orders: Any Constitutional Amendment Act will be applicable to Jammu and Kashmir only on presidential order.
  3. State legislature: Legislative Assembly consists of 100 members – 24 seats vacant for PoK. Legislative Council consists of 36 members. 11 out of 36 come from Jammu, 9 from Kashmir, 1 from Kargil, 1 from Ladakh and are elected by Legislative Assembly. Remaining 14 are elected by different electorates.
  4. Concurrent list: Only few matters in concurrent list lie with the parliament, rest with the state.
  5. Residuary powers: They lie with the state. (In case of all other states the residuary power is left with centre)
  6. Preventive detention: Only state can make a law on preventive detention.
  7. Alteration of boundary, names: No such law can be made by the parliament without the consent of the state legislature.
  8. International treaties: Parliamentary law enforcing such treaties shall not be applicable to the state.
  9. Art 365: Union can’t suspend the Constitution of the state or government for failing to comply with the directives given under Art 365.
  10. Art 356: It shall be applicable only if the breakdown has occurred as per state Constitution and not union Constitution.
  11. Governor’s rule: Governor’s rule can be proclaimed under the state Constitution.
  12. Financial emergency: Can’t be declared on the state.
  13. FR & DPSP: Directive Principle of State Policy (DPSP) are not applicable. Art 19 has some restrictions. Right to property is still enjoyed by the permanent residents of the state.

Points of similarities with other states

  1. Governor is appointed by the president in the usual way.
  2. Judges of High Court and State Public Commission Service (SPSC) are appointed in the usual way.
  3. Art 249: It extends the jurisdiction of parliament on state list as well (on a resolution of Council of State) for 1 year. This is applicable to Jammu and Kashmir as well in national interest.
  4. President’s rule: It can be imposed upon the state.
  5. Jurisdictions of Supreme Court, Comptroller and Auditor General of India (CAG), Election Commission extend to Jammu and Kashmir.

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