Malcolm Rivera
Jammu and Kashmir (J&K) was the only state in India with a separate constitution, enacted on 26 January 1957. The J&K Constitution was a product of bilateralism, treating the provisions of the Indian Constitution as sacrosanct while the Indian Constitution offered certain safeguards. The J&K Constitution was abrogated by the President on 5 August 2019, and now the Constitution of India is applicable to the state, like all other states and union territories of India.
| Characteristics | Values |
|---|---|
| Separate Constitution | Jammu and Kashmir was the only state with a separate constitution, enacted on 26 January 1957 and abrogated on 5 August 2019 |
| Relationship with the Indian Constitution | The J&K Constitution was a product of bilateralism, treating the Indian Constitution as sacrosanct and offering certain safeguards in return |
| Powers of the Union of India | The J&K Constitution limited the executive powers of the Union of India |
| Permanent Residency | The J&K Constitution defines the concept of Permanent Residency, which grants special rights and privileges to residents of the state |
| Number of Amendments | As of 2002, there were 29 amendments to the J&K Constitution |
| Number of Articles | As of 2002, the J&K Constitution had 158 articles divided into 13 parts and 7 schedules |
| Jurisdiction | The J&K Constitution had jurisdiction over matters related to defence, foreign relations, communication, and finance |
| Legislative Powers | The J&K State Legislature had "complete authority" to decide the permanent residents of the state and grant them special rights |
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What You'll Learn
The J&K Constitution was abrogated in 2019
Jammu and Kashmir (J&K) was the only Indian state with a separate constitution, enacted on January 26, 1957. This was made possible by Article 370 of the Indian Constitution, which gave special status to J&K, empowering its Constituent Assembly to recommend the extent to which the Indian Constitution would apply to the state.
However, on August 5, 2019, the J&K Constitution was abrogated by the President of India, who issued a Presidential Order superseding the 1954 Order. This meant that all the provisions of the Indian Constitution would henceforth apply to J&K, and the state would no longer have a separate constitution. The 2019 Order stated that the Indian Constitution applied to J&K, removing all previous restrictions that had specified that only some articles of the Indian Constitution applied to the state.
The abrogation of the J&K Constitution was part of a 70-year-old exercise to integrate J&K with the rest of India. The Bharatiya Janata Party (BJP), led by Prime Minister Narendra Modi, had long opposed Article 370 and included its revocation in their 2019 election manifesto. They argued that it was necessary to scrap the Article to put Kashmir on equal footing with the rest of India and that it had hindered development, increased corruption, and impeded the implementation of democracy in the state.
The abrogation of the J&K Constitution and Article 370 has been controversial, with critics arguing that it was done to divert attention from India's economic slowdown and that it could lead to a change in the demographic character of the Muslim-majority region by allowing non-Kashmiris to buy property. There have been a series of petitions challenging the abrogation, with 23 petitions presented to the Supreme Court of India in 2019. The Court upheld the abrogation, stating that it was constitutionally sound, but the debate continues.
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J&K Constitution and the Indian Constitution
Jammu and Kashmir (J&K) was the only state to have a separate constitution, enacted on 26 January 1957 and abrogated by the President on 5 August 2019. The J&K Constitution was a product of bilateralism and treated the provisions of the Indian Constitution as sacrosanct. Article 370 of the Indian Constitution, drafted in Part XXI titled "Temporary, Transitional and Special Provisions", gave J&K special status and the power to have a separate constitution, a state flag, and autonomy of internal administration.
The Instrument of Accession (IoA) gave limited powers to the Government of India in relation to foreign affairs, defence, and communications. The relationship between J&K and the Union of India was governed by special circumstances, which led to the incorporation of Article 370. The J&K Constituent Assembly was directed by the Indian Constitution and was formed to decide on matters not covered by the IoA.
The J&K Constitution, with 158 articles divided into 13 parts and 7 schedules (as of 2002), had notable differences with other states' constitutions. Until 1965, the head of state in J&K was called Sadr-i-Riyasat, while other states used the title Governor, and the head of government was called Prime Minister instead of Chief Minister.
On 5 August 2019, the President of India issued a presidential order, The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272), making all provisions of the Indian Constitution applicable to J&K and rendering the J&K Constitution infructuous. This was based on a resolution passed by a two-thirds majority in both houses of India's parliament. The Jammu and Kashmir Reorganisation Act, 2019 was also passed, dividing the state into two union territories: Jammu and Kashmir, and Ladakh.
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J&K Constitution and dual citizenship
The Constitution of Jammu and Kashmir was the legal framework for the state government of the Indian state of Jammu and Kashmir. It was adopted on November 17, 1956, and came into effect on January 26, 1957, and included Ladakh. The Constitution of India granted special status to Jammu and Kashmir among Indian states, and it was the only state in India to have a separate constitution.
Article 370 of the Indian Constitution stated that the Parliament of India and the Union government's jurisdiction extended over limited matters with respect to the State of Jammu and Kashmir. In all other matters not specifically vested in the Federal government, actions had to be supported by the state legislature. This meant that the Union Legislature had very limited jurisdiction over Jammu and Kashmir compared to other states.
The Constitution of Jammu and Kashmir defined a concept of Permanent Residency, in Part III. This was distinct from the unitary citizenship of India, and the Supreme Court has clarified that there is no dual citizenship for the people of Jammu and Kashmir. Despite this, Hurriyat has often spread misinformation on the concept of Permanent Residency, falsely claiming that the people of Jammu and Kashmir enjoy dual citizenship.
The issue of citizenship in Jammu and Kashmir has been a complex one. While the state had its own constitution and the concept of Permanent Residency, India has always had a unitary citizenship. Matters were further complicated by the special status of Jammu and Kashmir, which was granted under Article 370 of the Indian Constitution. This allowed the state to have limited sovereignty and autonomy, with the President of India having the power to extend provisions of the Constitution to the state with "exceptions and modifications".
On August 5, 2019, the President of India issued a presidential order called the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) under Article 370, making all the provisions of the Constitution of India applicable to the State of Jammu and Kashmir. This rendered the Constitution of Jammu and Kashmir infructuous from that date, effectively taking away the state's autonomy.
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J&K Constitution and the Instrument of Accession
Jammu and Kashmir (J&K) was the only Indian state with a separate constitution, enacted on January 26, 1957, and abrogated by the President on August 5, 2019. The J&K Constitution was formed as a result of the Indian Constitution, which directed the formation of the J&K Constituent Assembly. Article 35A of the Indian Constitution, added in 1954, gave the J&K State Legislature the authority to decide on the state's 'permanent residents' and grant them special rights. The limitations of Article 35A were reflected in the J&K Constitution.
The J&K Constitution was a bilateral agreement, with the Indian Constitution providing certain safeguards. Article 370 was the medium through which both constitutions communicated, and it required a valid, elected state government. Article 370 was abrogated when the polarity between the Union and the State was merged.
The Instrument of Accession (IoA) was signed by Maharaja Hari Singh, ruler of Jammu and Kashmir, on October 26, 1947. This document allowed Princely states to choose to join either the Indian or Pakistan Dominion. The Instrument of Accession states:
> I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu & Kashmir (hereinafter referred to as "this State") such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August 1947, (which Act as so in force is hereafter referred to as "the Act"). I hereby assume the obligation of ensuring that due effect is given to provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession.
The IoA was dated October 26, but some scholars believe it was actually signed on October 27, 1947, the day the Indian troops were airlifted into Kashmir. The accession of J&K to India is celebrated annually on Accession Day, October 26. The founder of the Islamic Republic of Pakistan, Mohammad Ali Jinnah, stated that the accession was "fraudulent". However, the Supreme Court of India has stated that J&K does not have any internal sovereignty distinct from the powers and privileges enjoyed by other states in the country. The J&K Constitution was a document of internal governance and not a parallel constitution to the Indian Constitution.
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J&K Constitution and federalism
Jammu and Kashmir (J&K) was the only state in India to have a separate constitution, enacted on 26 January 1957 and abrogated by the President on 5 August 2019. The J&K Constitution gave the state legislature "complete authority" to decide the 'permanent residents' of the state and grant them special rights and privileges in state public sector jobs, acquisition of property within the state, scholarships, and other public aid and welfare programmes.
The J&K Constitution was a product of bilateralism, treating the provisions of the Indian Constitution as sacrosanct while the Indian Constitution offered certain safeguards. Article 370 of the Indian Constitution, which was drafted in Part XXI titled "Temporary, Transitional and Special Provisions", gave special status to J&K, conferring on it the power to have a separate constitution, a state flag, and autonomy of internal administration. Article 370 was the "medium" through which both the Constitutions communicated over the years, and it required a valid, elected state government for its abrogation.
The J&K Constitution limited the executive powers of the Union of India and restricted the legislative reach of the Parliament. The Supreme Court of India, hearing a series of petitions challenging the abrogation of Article 370, asked why the Union of India, the Legislative Assembly of Jammu and Kashmir, or the political establishment in the rest of the country had never bothered to bring the J&K Constitution "expressly" within the fold of the Indian Constitution. The court also upheld the constitutionality of the abrogation of Article 370.
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Frequently asked questions
Yes, Jammu and Kashmir (J&K) was the only state with a separate constitution, enacted on 26 January 1957. It was abrogated by the President on 5 August 2019.
The J&K Constitution was a product of bilateralism. It treated the provisions of the Indian Constitution as sacrosanct and, in return, the Indian Constitution offered certain safeguards.
The J&K Constitution defined the concept of "Permanent Residency", which granted special rights and privileges to residents of the state. It also limited the executive powers of the Union of India.
The J&K Constitution was abrogated in 2019, and the Constitution of India is now applicable to Jammu and Kashmir, like all other states and union territories of India.
