Article 370 of the Indian constitution, which is of a temporary nature, grants special status to Jammu and Kashmir. 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.
When India and Pakistan gained their independence on 15 and 14 August 1947, respectively; J&K chose to remain independent. There was an agreement by J&K with Pakistan and India that none of them will attack J&K. While India respected the agreement and exercised restraint, Pakistan attacked Kashmir in a bid to annex it by force. On 6 October 1947, Kashmir was attacked by “Azad Kashmir Forces” supported by Pakistan. To save J&K, Maharaja Hari Singh (the then ruler of J&K) chose to accede J&K to India.
In October 1947, the accession was made by the ruler in favour of India in consideration of certain commitments made by Pt. Jawahar Lal Nehru (the then Prime Minister of India). It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution.
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 26 January 1957.
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.
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.
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.
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. In the Indian Constitutional history only one Fundamental Right has been added so far and that is Right to Education. this right too is not extending to 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.
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.
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.
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).
No Bill or amendment can be introduced or moved in either House of the Legislature which seeks to make any change in the provisions that (a) the State of Jammu and Kashmir is and shall be an integral part of the Union of India (Art. 3) (b) the executive and legislative power of the State does not extend to matters those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India (Art. 5), (c) of the Constitution of India as applicable in relation to the State (Art.147 (c) and Art. 147. (Art. 147(a)).
Under Article 370(3), consent of state legislature and the constituent assembly of the state are also required to amend Article 370. Now the question arises, how can we amend Article 370 when the Constituent Assembly of the state no longer exists? Or whether it can be amended at all? Some jurists say it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370(1). But it is still a mooted question.
Equally valid arguments are forwarded by those in favour of and those against its abrogation. Those in favour argue that it has created certain psychological barriers. They say that it is the root cause of all the problems in J&K. The further believe that it is this Article 370 which encourages secessionist activities within J&K and other parts of the country. They say, at the time of enactment, it was a temporary arrangement which was supposed to erode gradually. They also argue that it acts as a constant reminder to the Muslims of J&K that they have still to merge with the country.
Those against its abrogation forward the following arguments. They contend that that Abrogation will have serious consequences. It will encourage secessionists to demand plebiscite which will lead to internationalisation of the issue of J&K. They further argue that the contention of Article giving rise to secessionist activities is baseless as states like Assam and Punjab, which don’t have any special status have experienced such problems. It would not only constitute a violation of the solemn undertaking given by India through the instrument of accession, but would also give unnecessary misgivings in the minds of the people of J&K, making the issue more sensitive.
This article specifies that except for Defence, Foreign Affairs, Finance and Communications,(matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, and Nagaland however it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the U.N.Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .
The 1974 Indira-Sheikh accord mentions that " The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India " .
Indian citizens from other states and J&K women who marry men from other states can not purchase land or property in Jammu & Kashmir[1]