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.
|All the provisions of the Constitution of India relating to the States in the First Schedule are not applicable to Jammu & Kashmir.|
The salient features of the constitutional position of J & K in relation to the Union as modified from time to time are given below.
Parliamentary jurisdiction is confined to the matters enumerated in the Union List and the Concurrent List, subject to certain modifications while it shall have no jurisdiction as regards most of the matters enumerated in the Concurrent List.
In the case of Jammu & Kashmir, the residuary power shall belong to the Legislature of that State, excepting certain matters, specified in 1969, for which Parliament shall have exclusive power e.g., prevention of activities relating to cession of secession or disrupting the sovereignty or integrity of India.
The power to legislate with respect to preventive detention in J & K belongs to the Legislature of the State instead of Parliament.By the Constitution (Application to Jammu & Kashmir) Order 1986, however (Article 249) has been extended to the State of Jammu & Kashmir.
The plenary power of the Indian Parliament is alsocurbed in certain other matters, with respect to J & K, e.g., alteration of the name or territories of the State (Article 3) (ii) international treaty or agreement affecting the disposition of any part of the territory of the State (Article 253). In these matter the consent of the State Legislature is required. Similar matters have been imposed upon the executive power of the Union.
Thus no decision affecting the disposition of the State can be made by the Government of India, without the consent of the Government of the Union under Article 356
In the event of a breakdown of the constitutional machinery as provided by the State Constitution, it is the Governor who shall have the power, with the concurrence of the President, to assume to himself all or any of the functions of the Government of the State, except those of the High Court.
The Union shall have no power to make a Proclamation of Financial Emergency with respect of the State of Jammu and Kashmir under Article 360.
Furthermore, Emergency (Article 352) can be applicable to J & K only in the event of war or external aggression. The concurrence of the State Legislature is required for emergency on ‘armed revolt’.
The Directive Principles of State Policy do not apply to the State of Jammu & Kashmir. The provision of part 19 are subject to special restrictions. Articles 19(1)(f) and 31(2) have not been omitted so that the fundamental right to property is still guaranteed in this State.
Public Interest Litigation
The State of Jammu & Kashmir has its own Constitution (made by a separate Constituent Assembly and promulgated in 1957).
No alteration of the area or boundaries of J & K can be made by Parliament without the consent of the Legislature of the State of J & K.
By amendments of the Constitution Order, the jurisdictions of the Comptroller and Auditor-General, of the Election Commission, and the Special Leave Jurisdiction of the Supreme Court have been extended to the State of Jammu & Kashmir.