Constitutional Status of Jammu Kashmir

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Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the State of Jammu and Kashmir has been accorded special status under Article 370. Even though included in 1st Schedule as 15th state, all the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of Chief Minister.

Separate Constitution

J&K is the only state in India which has a Constitution of its own. The Constitution of J&K was enacted by a separate Constituent Assembly set up by the State and it came into force on 26th January 1957.

Jurisdiction of Parliament

Parliament or the Union Legislature has very limited jurisdiction in case of J&K as compared to other states. Till 1963, Parliament could legislate on subjects contained in the Union List, and had no jurisdiction in case of Concurrent List under 7th Schedule of the Constitution. But now, the Parliament has power to legislate not just on subjects contained in the Union List but also on some of the subjects of Concurrent List.

Residuary powers, unlike other states, rest with J&K.

The Parliament has no power to legislate Preventive Detention laws for the state; only the state legislature has the power to do so.

Autonomy in certain matters

Any action of the Union Legislature or Union Executive which results in alteration of the name or territories or an international treaty or agreement affecting the disposition of any part of the territory of the state requires the consent of the State Legislature or the State Executive (as the case may be) to be effective.

The Union has no power to suspend the Constitution of J&K.

Emergency Provisions

The Union of India has no power to declare Financial Emergency under Article 360 in the state. The Union can declare emergency in the state only in case of War or External Aggression.

No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the state unless (a) it is made at the request or with the concurrence of the government of the state; or (b) where it has not been so made, it is applied subsequently by the President to that state at the request or with the concurrence of the government of that state.

In December 1964, Articles 356 and 357 were extended to the state.

Fundamental Duties, Directive Principles & Fundamental Rights

Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K.

In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are still applicable to J&K; hence the Fundamental Right to property is still guaranteed in this state.

High Court of J&K

The High Court of J&K has limited powers as compared to other High Courts within India. It can’t declare any law unconstitutional.

Unlike High Courts in other states, under Article 226 of the Constitution, it can’t issue writs except for enforcement of Fundamental Rights.

Official Languages

Provisions of Part XVII of the Constitution apply to J&K only insofar as they relate to (i) the official language of the Union; (ii) the official language for communication between one state and another; or between a state and the Union; and (iii) language of the proceedings in the Supreme Court.

Urdu is the official language of the state but use of English is permitted for official purposes unless the state legislature provides otherwise.

Miscellaneous

Certain special rights have been granted to the permanent residents of J&K with regard to employment under the state, acquisition of immovable property in the state, settlement in the state, and scholarship and other forms of aid as the state government may provide.

The 5th Schedule pertaining to the administration and control of Schedule Areas and Scheduled Tribes and the 6th Schedule pertaining to administration of tribal areas are not applicable to the state of J&K.

Procedure for Amendment of State Constitution

The Provisions of the State Constitution (except those relating to the relationship of the state with the Union) may be amended by an Act of the Legislative Assembly of the state passed by not less than two-thirds of its membership.

If such amendment seeks to affect Governor or Election Commission, it needs President’s assent to come into effect.

No amendment of the Constitution of India shall extend to J&K unless so extended by an order of the President under Article 370(1).

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