Eleanor Finch
Jammu and Kashmir is a region in the northern part of the Indian subcontinent and is legally constituted as a state of India. It is the only state in India with its own constitution and national flag. The region has been the subject of a dispute between India, Pakistan, and China since 1947, and its constitutional position has been a complex and contentious issue. The Instrument of Accession, signed by Maharaja Hari Singh, gave limited powers to the Indian government over Jammu and Kashmir, and Article 370 of the Indian Constitution granted special status to the region, allowing it to have a separate constitution, a state flag, and autonomy in internal administration. However, in 2019, the Indian government revoked the special status of Jammu and Kashmir, sparking controversy and raising concerns about human rights and regional stability.
| Characteristics | Values |
|---|---|
| Constitution | Jammu and Kashmir has its own constitution in addition to the Indian Constitution. |
| Flag | Jammu and Kashmir is the only state in India with its own flag. |
| Autonomy | Jammu and Kashmir has autonomy over its internal administration. |
| Legislative powers | The state legislative assembly determines who is a permanent resident of Jammu and Kashmir. |
| Powers of the Central Government | The Central Government has powers over Jammu and Kashmir in the areas of defence, foreign affairs, and communications. |
| Citizenship | Jammu and Kashmir has its own citizenship laws, separate from the rest of India. |
| Property ownership | Jammu and Kashmir has separate laws regarding the ownership of property. |
| Fundamental rights | Jammu and Kashmir has a separate set of fundamental rights compared to other Indian states. |
| Education | Jammu and Kashmir has the power to formulate laws regarding education. |
| Government jobs | Jammu and Kashmir has special privileges for permanent residents in matters of government employment. |
| Residency | Jammu and Kashmir has separate laws regarding residency. |
| Special status | Jammu and Kashmir was granted special status under Article 370 of the Indian Constitution, which was revoked on 5 August 2019. |
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What You'll Learn
The revocation of Article 370
Article 370, incorporated into the Indian Constitution in 1950, gave Jammu and Kashmir the power to have a separate constitution, a state flag, and autonomy in internal administration. It was included in the Constitution under Part XXI, titled "Temporary, Transitional and Special Provisions". The Article was deemed to have become a permanent feature of the Indian Constitution as the state's constituent assembly dissolved itself in 1957 without recommending its abrogation.
The revocation was opposed by several political parties, including the Indian National Congress, Jammu & Kashmir National Conference, Jammu and Kashmir Peoples Democratic Party, Communist Party of India, and the Trinamool Congress. In Ladakh, the predominantly Shia Muslim Kargil area protested, while the Buddhist community supported the decision.
The Supreme Court of India upheld the constitutionality of the abrogation of Article 370 in December 2023.
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The Instrument of Accession
Jammu and Kashmir is the only state in India with its own constitution and flag. The region has been the subject of a dispute between India, Pakistan, and China since 1947. The special constitutional position of Jammu and Kashmir was granted by Article 370 of the Indian Constitution, which was incorporated due to commitments between the state and the Indian government.
Article 370 was designed to protect the rights of Jammu and Kashmir to have its own constitution and decide what powers to extend to the central government. It also exempted the state from the complete applicability of the Constitution of India. The state's relationship with the Indian government was regulated by special circumstances.
The date of the Instrument of Accession is a subject of debate, with some scholars believing it was actually signed on 27 October 1947, the day Indian troops were airlifted into Kashmir. The accession to India is celebrated annually on 26 October, known as Accession Day. The Instrument of Accession was significant as it marked the beginning of the constitutional relationship between Jammu and Kashmir and the Indian government, which was later formalized through Article 370.
On 5 August 2019, the special status granted to Jammu and Kashmir under Article 370 was revoked by the Union Government through a presidential order, making the Indian Constitution fully applicable to the state. This marked the end of Jammu and Kashmir's special constitutional position and brought it under the direct rule of the central government.
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The Jammu and Kashmir Constitution
The Constitution of Jammu and Kashmir was the legal constitution that established a framework for the government of Jammu and Kashmir. It was adopted on 17 November 1956 and came into effect on 26 January 1957. Jammu and Kashmir was the only state in India with its own constitution and flag. The Indian Constitution was also applied in the state, with the Instrument of Accession giving the Indian government limited powers over Jammu and Kashmir in the areas of foreign affairs, communications, and defence.
Article 370 of the Indian Constitution gave Jammu and Kashmir special status, allowing it to have a separate constitution, a state flag, and autonomy in internal administration. This article was incorporated due to commitments between the state and the Indian government, protecting the rights of the state to draft its own constitution and decide on the extension of additional powers to the central government. It also allowed Jammu and Kashmir to make its own rules relating to permanent residency, ownership of property, and fundamental rights.
The special status of Jammu and Kashmir was revoked on 5 August 2019 by the Indian government through a presidential order, making the Indian Constitution fully applicable to the state. This move was controversial, sparking unrest within the valley and retaliatory actions from Pakistan. The revocation of Article 370 was part of a broader reorganisation of the state, with the goal of giving the central government more control.
The Jammu and Kashmir citizenship Act (Article 35A) of the Indian Constitution empowered the state to decide on 'permanent residents' and grant them special rights and privileges, such as the ability to purchase property and land, seek government employment, and obtain higher education. With the revocation of Article 370, these special privileges were also removed, and people from outside the state gained the right to buy property in the region.
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The Indian Constitution's applicability
The Instrument of Accession and Article 370:
Jammu and Kashmir's relationship with the Indian government was initially governed by the Instrument of Accession, which granted limited powers to the Indian government over the region regarding foreign affairs, communications, and defence. This agreement also allowed Jammu and Kashmir to retain significant autonomy, including the right to draft its constitution. To protect these rights, Article 370 was incorporated into the Indian Constitution, granting Jammu and Kashmir special status.
Special Status under Article 370:
Article 370, included in Part XXI of the Indian Constitution, gave Jammu and Kashmir the power to have its own constitution, a separate flag, and autonomy in internal administration. It exempted the state from the complete applicability of the Indian Constitution, allowing it to formulate laws for its permanent residents, including special privileges in matters such as residence, property ownership, education, and government jobs. The state legislative assembly determined who was considered a permanent resident.
Erosion of Special Status:
Over time, the special status of Jammu and Kashmir was gradually eroded through presidential orders issued under Article 370. These orders extended the powers of the Central Government to the state and applied various articles of the Indian Constitution to Jammu and Kashmir. This process, termed the "erosion" of Article 370, raised controversies and was seen as a violation of the solemn compact between India and Jammu and Kashmir.
Revocation of Special Status:
On August 5, 2019, the Government of India revoked the special status granted to Jammu and Kashmir under Article 370 through a presidential order. This action ended the region's autonomy and made the Indian Constitution fully applicable to the entire Jammu and Kashmir. The revocation was accompanied by communication blackouts, additional security deployments, and the detention of Kashmiri political leaders. The Indian government justified these measures as necessary to maintain peace and enable the people of the state to access various government programmes and rights.
Current Status:
With the revocation of Article 370, Jammu and Kashmir became a union territory, governed directly by the Central Government. The region's separate constitution ceased to be applicable, and the Indian Constitution, including its Fundamental Rights and other provisions, became the governing framework. This change in status was recognised as a sovereign decision by the Indian government, in line with its constitutional parameters. However, it also sparked controversies, with some calling for the protection of the region's unique constitutional position.
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The state's permanent residents
The state of Jammu and Kashmir was granted special constitutional status under Article 370 of the Indian Constitution. This article was inserted in 1949 and gave Jammu and Kashmir the power to have its own constitution, a separate flag, and autonomy over internal administration.
Article 370 was designed to protect the rights of the state, including the right to draft its own constitution and decide what powers to extend to the Central Government. It also exempted the state from the complete applicability of the Indian Constitution.
The state legislative assembly determined who was considered a permanent resident. To qualify as a permanent resident, one had to lawfully own property in Jammu and Kashmir, have resided in the state for ten years before 14 May 1954, and not have migrated to Pakistan on or after 1 March 1947.
In 2004, the Jammu and Kashmir Legislative Assembly passed the Permanent Residents (Disqualification) Bill, also known as the Daughter's Bill. This law sought to deprive the daughters of permanent residents of their rights and privileges if they married someone who was not a subject of Jammu and Kashmir. This law was criticised as a violation of women's fundamental rights and as discriminatory based on gender.
On 5 August 2019, the special status granted to Jammu and Kashmir under Article 370 was revoked by the Union Government through a presidential order, making the Indian Constitution applicable to the entire state. This move was welcomed by some, including members of the Kashmiri Hindu community who had been displaced due to violence, while it was protested by others, including in Bangladesh and by the Indian National Congress party.
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Frequently asked questions
Jammu and Kashmir was a region administered by India as a state and was granted special status under Article 370 of the Indian Constitution. This status was revoked on 5 August 2019.
Article 370 gave Jammu and Kashmir the power to have its own constitution, a separate state flag, and autonomy over its internal administration.
Jammu and Kashmir acceded to the Indian Union on terms that allowed it to retain much of its autonomy. Article 370 was designed to protect those rights.
The residents of Jammu and Kashmir lived under a separate set of laws compared to other Indian states. These laws covered citizenship, ownership of property, and fundamental rights. The state also decided who was considered a 'permanent resident', who was granted special privileges in matters such as residence, property, education, and government jobs.
The revocation of Article 370 led to the extension of the Indian Constitution to Jammu and Kashmir, bringing it under direct central rule. It also resulted in the cutting off of communication lines in the Kashmir Valley, deployment of additional security forces, and the detention of several leading Kashmiri politicians.
