Jammu & Kashmir | Indian Polity for UPSC CSE PDF Download

Jurisdiction of Parliament

It is confined to the matters enumerated in theUnion 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.

While in relation to the other States, the residuary power of legislation belongs to Parliament, 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 or secession, or disrupting the sovereignty or integrity of India.

The power to legislate with respect to preventive detention in Jammu & Kashmir belongs to the Legislature of the State instead of Parliament so that no law of preventive detention made by Parliament will extend to that State.

By the Constitution (Application to Jammu &Kashmir) Order 1986, however, Art. 249 has been extended to the State of Jammu & Kashmir, so that it would now be competent to extend the jurisdiction of Parliament to that State, in the national interest (e.g., for the protection of the borders of the State from aggression from Pakistan or China), by passing a resolution in the Council of States.

Autonomy of the State

The plenary power of the Indian Parliament iscurbed in certain matters, with respect to which Parliament cannot make any law without the consent of the Legislature of the State of Jammu & Kashmir, where that State is to be affected by such legislation, e.g.  

Alteration of the name or territories of the State[Art. 3].

International treaty or agreement affecting thedisposition of any part of the territory of the State [Art. 253].

Similar fetters have been imposed upon the executive power of the Union to safeguard the autonomy of the State of Jammu & Kashmir, a privilege which is not enjoyed by the other States of the Union.Thus,

No Proclamation of Emergency made by thePresident under Art. 352 on the ground of internal disturbance shall have effect in the State of Jammu & Kashmir, without the concurrence of the Government of the State.

Similarly, no decision affecting the dispositionof the State can be made by the Government of India, without the consent of the Government of the State.  The Union shall have no power to suspend theConstitution of the State on the ground of failure to comply with the directions given by the Union under Art. 365. 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 to the State of Jammu & Kashmir under Art. 360. The provisions of Part IV of the Constitution ofIndia relating to the Directive Principles of State Policy do not apply to the State of Jammu & Kashmir. The provisions of Art. 19 are subject to specialrestrictions for a period of 25 years. Art. 19 (1) (f) and 31 (2) have not been omitted, so that the fundamental right to property is still guaranteed in this State.

Separate Constitution

The State of Jammu & Kashmir has its ownConstitution (made by separate Constituent Assembly and promulgated in 1957). While an Act of Parliament is required for theamendment of any of the provisions of the Constitution of India, the provisions of the State Constitution of Jammu & Kashmir (excepting those relating to the relationship of the State with the Union of India) may be amended by an Act of the Legislative Assembly of the State, passed by a majority of not less than twothirds of its membership; but if such amendment seeks to affect the Governor or the Election Commission, it shall have no effect unless the law is reserved for the consideration of the President and receives his assent. It is also to be noted that no amendment of theConstitution of India shall extend to Jammu & Kashmir unless it is so extended by an Order of the President under Art. 370 (1).

Origin of Art 370 of the Constitution

Art. 370 of the Constitution is a temporary provision of the Indian Constitution granting special status to the state of Jammu and Kashmir. It is the vital cord that links J & K to India. It was introduced to provide a mechanism to declare Kashmir an integral part of India, besides allowing the people of the State to exercise their option for a total merger with India on a plebiscite.

This Article was the outcome of the circumstances in which Kashmir was integrated in 1949. It was accorded a special position within the federal framework. India has conceded by Art. 370 a Constituent Assembly for the State, in consultation with which the nature and extent of the Centre’s jurisdiction in the J & K could be determined. Only foreign affairs, defence and communications became Union subjects.

The Article is the only legal window through which the Republic of India maintains its territorial link with Jammu & Kashmir and extends the jurisdiction of the Union to the State. To scrap this special provision would mean reverting to the Instrument of Accession of October 1947 signed by the Maharaja Sri Hari Singh, on the advice of Sheikh Abdullah, in the wake of the invasion by Pakistan infiltrators.

370 is an article of faith. The revocation of this Article would spell disaster and provide an impetus to the secessionists who demand an unconditional plebiscite and, much worse, independence for the State. It might also fuel division in the rest of the country, which is the last thing India wants at this hour.

Serious limitations

The State of Jammu & Kashmir holds a peculiar position under the Constitution of India. Art. 370 contains several temporary provisions relating to this State. Various fetters have been imposed upon theexecutive power of the Union to safeguard the autonomy of the State, a privilege which is unique. Thus, among other things,

No Proclamation of Emergency made by thePresident under Art. 352 on the ground of internal disturbance shall have effect in the State of Jammu & Kashmir, without the concurrence of the Government of that state. The Union shall have no power to make a Proclamation of Financial Emergency with respect to the State of Jammu & Kashmir under Art. 360. The Union shall have no power to suspend the State Constitution. In other words, the federal relationship between the Union and this State respects State's rights more unequivocally than in the case of the other States of the Union.