Simone Lawson
The Indian Constitution was not applicable in Jammu and Kashmir due to the region's special status under Article 370 of the Indian Constitution. This article, included in Part XXI of the Constitution, which addresses Temporary, Transitional and Special provisions, allowed Jammu and Kashmir to establish a separate constituent assembly and granted the region autonomy in several areas, including defence, foreign relations, communication, and finance. While the Indian Constitution now applies to Jammu and Kashmir following the 2019 presidential order, historical differences in the application of constitutional provisions have shaped the region's political and legal landscape.
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What You'll Learn
- The Constitution of Jammu and Kashmir was enacted on 26 January 1957
- Article 370 of the Indian Constitution gave Jammu and Kashmir special status
- The Indian Constitution did not apply in full to Jammu and Kashmir
- Jammu and Kashmir is the only state with its own constitution
- The President of India rendered the Constitution of Jammu and Kashmir infructuous in 2019
The Constitution of Jammu and Kashmir was enacted on 26 January 1957
The Constitution of Jammu and Kashmir came into effect on 26 January 1957, after being adopted on 17 November 1956. It was signed into law by the Constitution of Jammu and Kashmir Maharaja, Dr Karan Singh. This constitution granted Jammu and Kashmir a special autonomous status within India, as mentioned in Part XXI of the Indian Constitution. This status was also outlined in Article 370, a temporary provision that granted the state of Jammu and Kashmir powers over certain subjects, including the power to make laws related to preventive detention.
The Constitution of Jammu and Kashmir was unique in that it defined the concept of Permanent Residency, which was not present in the Constitution of India. It also had notable differences from other states, such as the titles of its head of state and head of government. While other Indian states had a Governor as the head of state and a Chief Minister as the head of government, Jammu and Kashmir's head of state was called the Sadr-i-Riyasat, and its head of government was called the Prime Minister.
Additionally, the Instrument of Accession (IoA) gave limited powers to the Government of India in Jammu and Kashmir, only pertaining to foreign affairs, defence, and communications. This was different from other princely states, which later signed merger agreements. The special status of Jammu and Kashmir was further emphasised by the fact that it was the only state in India with a separate constitution.
However, on 5 August 2019, the Constitution of Jammu and Kashmir was rendered infructuous by an order issued by the President of India, known as The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272). This order made all the provisions of the Constitution of India applicable to the State of Jammu and Kashmir, bringing it in line with other states and union territories of India.
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Article 370 of the Indian Constitution gave Jammu and Kashmir special status
Jammu and Kashmir, a region in the northern part of the Indian subcontinent, has been a source of dispute between India, Pakistan, and China since 1947. The state was officially administered by India from 1952 until 2019. Article 370, incorporated into the Indian Constitution in 1949, was a "temporary provision" that granted Jammu and Kashmir the power to have its own constitution, a separate flag, and autonomy over its internal administration. The article was drafted as a “temporary, transitional, and special provision”, intended to be applicable only until the state formulated and adopted its own constitution.
The Constituent Assembly of Jammu and Kashmir was empowered to determine which articles of the Indian Constitution would apply to the state and could even recommend the abrogation of Article 370. In 1954, after consultation with the state's Constituent Assembly, a presidential order was issued, specifying the articles of the Indian Constitution that would apply to Jammu and Kashmir. Notably, the Constituent Assembly dissolved itself without recommending the removal of Article 370, effectively making it a permanent feature of the Indian Constitution.
Over the years, the Indian government used provisions of Article 370 to issue presidential orders that extended the Indian Constitution to Jammu and Kashmir, reducing the state's autonomy. This process of erosion was acknowledged by Indian politicians as early as 1963. The special status granted to Jammu and Kashmir under Article 370 has been a subject of controversy and a key aspect of the ongoing Kashmir dispute.
The revocation of Jammu and Kashmir's special status in 2019 was accompanied by a series of actions by the Indian government, including the detention of Kashmiri politicians and the cutting off of communication lines in the Kashmir Valley. The government justified its actions by stating that the revocation would enable the people of the state to access various government programmes and benefit from increased industrialization, tourism, and better access to health and education.
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The Indian Constitution did not apply in full to Jammu and Kashmir
As a result, only two articles of the Indian Constitution originally applied in full to Jammu and Kashmir, with other provisions being subject to exceptions and modifications specified by the President of India in consultation with the state government. This arrangement was intended to be temporary, lasting until the formulation and adoption of the state's own constitution.
The Constitution of Jammu and Kashmir, enacted in 1956 or 1957, further complicated the relationship between the state and the Indian Union. It reiterated the state's inclusion within the Indian Union but also restricted the executive powers of the Union and the legislative reach of the Indian Parliament. The state's unique status meant that it enjoyed a degree of autonomy not held by other Indian states, with residual powers vested in the state government rather than the central government.
Over time, the Indian Constitution was progressively extended to Jammu and Kashmir, with various presidential orders and agreements bringing more provisions of the Indian Constitution into force in the state. However, even after these changes, certain parts of the Indian Constitution, such as Part IV and Part IVA, did not apply to Jammu and Kashmir, and the state continued to have its own constitution and certain unique legal provisions. This situation lasted until 2019, when the Indian government issued a presidential order that rendered the Constitution of Jammu and Kashmir infructuous and brought all the provisions of the Indian Constitution into force in the state.
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Jammu and Kashmir is the only state with its own constitution
Jammu and Kashmir is the only state in India with its own constitution. This unique status is due to the region's complex history and its relationship with the Indian Union.
When India gained independence from the United Kingdom in 1947, Jammu and Kashmir was a princely state ruled by Maharaja Hari Singh. The Maharaja tried to maintain the region's independence and did not want to accede to either India or Pakistan. However, facing an attack by Pashtun tribes supported by Pakistan, he eventually signed an Instrument of Accession with India in October 1947. Despite this, Jammu and Kashmir retained a degree of autonomy, and the Indian government agreed that only certain provisions of the Indian Constitution would apply to the state.
As a result, Jammu and Kashmir formed its own constituent assembly and enacted its own constitution in 1956, which came into force on January 26, 1957. This constitution reiterated the state's inclusion within the Indian Union but also sought to maintain its unique status. The constitution of Jammu and Kashmir established a separate head of state, known as the Sadr-i-Riyasat, and a prime minister, instead of the governor and chief minister titles used in other Indian states.
The relationship between the Indian Constitution and the Jammu and Kashmir Constitution was complex. While the Jammu and Kashmir Constitution acknowledged the supremacy of the Indian Constitution, it also limited the executive powers of the Union of India and restricted the legislative reach of the Parliament. This unique arrangement was facilitated by Article 370 of the Indian Constitution, which allowed for special provisions to be applied to Jammu and Kashmir. Over time, various presidential orders modified the application of the Indian Constitution to Jammu and Kashmir, with some articles being made applicable in full, partially, or with modifications.
However, on August 5, 2019, the President of India issued a presidential order known as The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272). This order, made under Article 370, rendered the Constitution of Jammu and Kashmir infructuous and extended all the provisions of the Indian Constitution to the state. Despite this recent development, the unique history of Jammu and Kashmir and its previous constitutional autonomy set it apart from other states in India.
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The President of India rendered the Constitution of Jammu and Kashmir infructuous in 2019
On 5 August 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. This order made all the provisions of the Constitution of India applicable to the State of Jammu and Kashmir, and it rendered the Constitution of Jammu and Kashmir infructuous from that date.
Jammu and Kashmir was a princely state under the British at the time of Indian independence in 1947. Ruled by Maharaja Hari Singh, the state tried to remain independent and signed a standstill agreement with Pakistan. However, when Pashtun tribes, supported by the Pakistani government, attacked Jammu and Kashmir, the Maharaja requested assistance from India. India then asked for an Instrument of Accession to India, which the Maharaja signed. This Instrument of Accession gave limited powers to the Government of India, only concerning foreign affairs, defence, and communications.
Article 370 of the Indian Constitution, incorporated in 1952, gave special status to Jammu and Kashmir, allowing it to have a separate constitution, a state flag, and autonomy of internal administration. It also stipulated that the Central Government's powers would only be applied to Jammu and Kashmir with the concurrence of the State's constituent assembly. This was intended as a “temporary provision” until the formulation and adoption of the State's constitution. The Constitution of Jammu and Kashmir came into effect on 26 January 1957.
In 2019, the Indian Government passed the Jammu and Kashmir Reorganisation Act, which divided the state into two union territories: Jammu and Kashmir, and Ladakh. This reorganisation took place on 31 October 2019. The abrogation of Article 370 and the subsequent presidential order in 2019 effectively ended the special status of Jammu and Kashmir, making the Indian Constitution applicable to the region, just like all other states and union territories of India.
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Frequently asked questions
The Indian Constitution was not applicable in Jammu and Kashmir because the state had its own constitution, which was formed by the J&K Constituent Assembly, directed by the Indian Constitution. The J&K Constitution was enacted on 26 January 1957 and abrogated by the President on 5 August 2019.
The Indian Constitution is now applicable to Jammu and Kashmir, like all other states and union territories of India. The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) was issued by the President of India on 5 August 2019, rendering the J&K Constitution infructuous.
The two constitutions co-existed and complemented each other. Senior advocate Gopal Subramanium described their relationship as "bilateralism", with the Indian Constitution offering certain safeguards in return for the J&K Constitution treating its provisions as sacrosanct.
Article 370 of the Indian Constitution stipulated that the articles of the Constitution that gave powers to the Central Government would only be applied to Jammu and Kashmir with the concurrence of the State's constituent assembly. This article was the "medium" through which the two constitutions communicated and represented the principle of federalism.
