SPECIAL PROVISIONS:Article 370 Regarding Jammu and Kashmir

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Article 370 Regarding Jammu and Kashmir:

No law passed by the Parliament regarding the state of Jammu and Kashmir,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 Shiekh 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.But the agreement could not be implemented due to the differences.Finally,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 Indian 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 includes the territories,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 Kashmir, remain vacant because the situation is unsuitable for the election there.

iii) Though the executive and legislative powers of the State governrment over 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 enjoy 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.

Why Special Provisions?

      The whole state of Jammu and Kashmir enjoys special status among the states in India under Article 370 of the Constitution.This state enjoys special position because of the special circumstances under which it was brought under the governance of the Union of India.

      During the British period the state of Jammu and Kashmir was ruled by a hereditary king.Like many rulers Maharaja Hari Singh joined Dominion of lndia by signing the Instrument of Accession on October 26, 1947. India agreed to accept the accession of Jammu and Kashmir on the request of Maharaja,who had found it necessary following the attack of the Azad Kashmir forces in the wake of the formation of Pakistan.Accordingly the subjects of Defence, External Affairs and Communication in respect of Jammu and Kashmir like other states which joined lndia as per the lnstrument came under the jurisdiction of Dominion of India.

With the implementation of the Constitution in 1950, the state of Jammu and Kashmir was included in the Part B of the first Schedule.Despite being a member of the Part B states, the part inwhich the erstwhile big Princely states were placed,special provisions were devised for the governance of the state of Jammu and kashmir.These provisions were different from those meant for other states of the part B.These were incorporated in the Article 370 of the Constitution.

What’s The Provisions Says?

According to the provisions of this article,the state of Jammu and Kashmir was given a separate Constituent Assembly. It consisted of the representatives of people of the state.The aim of the Constituent Assembly was to write the constitution of the state and demarcate the jurisdiction of Union of India over the state of Jammu and Kashmir.The provisions of the Constituent Assembly were applied as interim arrangements.

Even as in the cases of erstwhile princely states, the Government of India was empowered to exercise control over all issues mentioned in the UNION LIST and put the condition on the Maharaja that following the accession the Maharaja would introduce a popular government.It meant that he would abolish the hereditary rule.

The accession was confirmed by the people of Jammu and Kashmir through their representatives in the Constituent Assembly of state. But it was done on the condition that Jammu and Kashmir would be governed by different rules to be framed by the Constituent Assembly.The suggestions of the Constituent Assembly of Jammu and Kashmir were incorporated in Article 370 of the Constitution of India.

Pathway of Article 370

The continuation,amendment or the suspension of this article cannot be done without support of a majority not less than two thirds of the membership of legislation Assembly of Jammu and Kashmir, which means people of the state. The President of lndia assented the recommendations of the Constituent Assembly by making Constitution(Application to Jammu and Kashmir) Order, 1950, in consultation with the Government of Jammu and Kashmir.This Order specified that the Parliament of India would be competent to make laws relating to three areas – Defence, Foreign Affairs,Communication, i.e., issues agreed upon in the Instrument of Accession. All other issues were to be administered according to the Constitution of Jammu and Kashmir.

Again, in 1952, an agreement was signed between the state govenrment and the Union of lndia.This agreement brought all issues mentioned in the Union List,not only three issues of defence,Foreign Affairs and Communication,under the jurisdiction of the Union government, pending the decision of the Constituent Assembly of Jammu and Kashmir.

In 1954, the Constituent Assembly of the Jammu and Kashmir ratified the Accession to lndia as well as the agreement between the state government and the Union of India. The President in consultation with the state government made the Constitution (Application to Jammu and Kaslmiir) Order,1954.This Order implemented the agreement of 1952 signed between the state govenrnent and the Union government and ratified the Constituent Assembly. This Order also superceded the earlier Order of 1950.

The Order of 1952 expanded the scope of jurisdiction of the centre from just three subjects of Defence, Foreign Affairs and Communication mentioned in the Instrument of Accession of Jammu and Kashmir to all subjects mentioned in the Union subjects in the Constitution of India.This Order was amended seven times between 1963 and 1974.The amended Order brings the entire constitutional position of the state of Jammu and Kashmir within the framework of the Constitution of India,excluding the Constitution of Jammu and Kashmir which was made by the Constituent Assembly of the state.

First Meet of Jammu and Kashmir Constituent Assembly

The state of Jammu and Kashmir is the only state in the country which has its own Constitution. It is also the only state,which had Constituent Assembly,drafted the constitution of the state.The Constituent Assembly of Jammu and Kashmir,was elected by the people of the state. The Constituent Assembly met for the first time on October 31,1951.
The Constituent Assembly of Jammu and Kashmir performed two main functions:

      i) It abolished the hereditary rule of Maharaja and replaced it with the elected head: Sadar-l-Riyasat,this post later was changed into the governor’s post. As per the conditions of the Instrument of Accession,the Maharaja introduced a popular interim government,after inviting Sheikh Abdulla, President of the All India Jammu and Kashmir Conference to form the interim government.Later the interim government changed into a full-fledged cabinet,and Sheikh Abdulla became its first Prime Minister.But Sheikh Abdullah was not satisfied with it.He wanted the Maharaja Hari Singh to resign. Since abolition of the hereditary post was one of the conditions of the Government of India in the Instrument of Accession,in June 1949. the Maharaja abdicated in favour of his young son Yuvaraj Karan Singh. Tllc Constituent Assembly elected the Yuvraj as ‘Sadar-i-Riyasat’ on October 3,1951.However,by the Constitution of Jammu and Kashmir,6th Amendment Act -1965,the post of Sadar-I-Riyasat was abolished.

      ii) It framed the Constitution of the state.The Draft Constitution of the Constituent Assembly for state was adopted on November 17,1957 and given effect from January 26,1957.

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