Isabella Carter
Jammu and Kashmir's unique constitutional status stems from its historical background and political circumstances during India's independence and partition. In 1947, Jammu and Kashmir was a princely state under British suzerainty, ruled by Maharaja Hari Singh, who initially tried to maintain the state's independence. However, an attack by Pashtun tribes backed by Pakistan led Maharaja Hari Singh to seek India's assistance, signing the Instrument of Accession (IoA) with India. This agreement granted India limited powers over Jammu and Kashmir, covering only defence, foreign affairs, and communications. Subsequently, the state's politicians decided to form a separate constituent assembly, which created the Jammu and Kashmir Constitution over five years, joining India on its own terms. This constitution, adopted in 1956 and enforced in 1957, established a framework for the state's government and included provisions for a separate flag and the concept of permanent residency. The special status granted to Jammu and Kashmir within the Indian Union was further enshrined by Article 370 of the Indian Constitution, which was incorporated to protect the state's rights and allowed Jammu and Kashmir to have its own constitution and internal autonomy. However, in 2019, the Indian government revoked Article 370, rendering the Jammu and Kashmir Constitution infructuous and bringing the state fully under the Indian Constitution.
| Characteristics | Values |
|---|---|
| Came into effect | 26 January 1957 |
| Special status granted by | Article 370 |
| Power to have a separate constitution | Article 370 |
| Power to have a state flag | Article 370 |
| Power to have autonomy of internal administration | Article 370 |
| Power to determine who is a permanent resident | Article 35A |
| Power to decide the rights and privileges of permanent residents | Article 35A |
| Relationship with the Union of India | "The State of Jammu and Kashmir is and shall be an integral part of the Union of India" |
| Jurisdiction over defence, foreign relations, communication and finance | Constitution of India |
| Jurisdiction over Preventive Detention laws | State Legislature |
| Power to declare Financial Emergency under Article 360 | None |
| Power to declare emergency | Only in case of War or External Aggression |
| Amendment of the Constitution | Requires an Act of the Legislative Assembly of the state passed by at least two-thirds of its membership |
| Amendment of the Constitution affecting the Governor or Election Commission | Requires the President's assent |
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What You'll Learn
The Indian Constitution is now applicable to Jammu and Kashmir
Jammu and Kashmir is the only state in India with its own constitution and national flag. The Constitution of Jammu and Kashmir was adopted on November 17, 1956, and came into effect on January 26, 1957. It provided justice, freedom, fraternity, and equality to the residents of the state. The constitution also defined the concept of 'Permanent Residency', which granted special rights and privileges to permanent residents, including the ability to purchase property and land, seek government employment, obtain higher education and healthcare, the ability to vote, and contest elections.
However, on August 5, 2019, the special status granted to Jammu and Kashmir under Article 370 was revoked by the Union Government through a presidential order. This order, known as The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272), made all the provisions of the Indian Constitution applicable to the state of Jammu and Kashmir, rendering the Constitution of Jammu and Kashmir infructuous.
Article 370, incorporated into the Indian Constitution, had previously given Jammu and Kashmir the power to have a separate constitution, a state flag, and autonomy related to internal administration. It was a "temporary provision" that allowed the state's constituent assembly to decide on the applicability of certain articles of the Indian Constitution. The Instrument of Accession (IoA) also played a role in the relationship between Jammu and Kashmir and the Indian government, giving the latter limited powers over foreign affairs, defence, and communications.
With the revocation of Article 370, the Indian Constitution is now applicable to Jammu and Kashmir, like all other states and union territories of India. This means that the residents of Jammu and Kashmir are subject to the same laws, rights, and privileges as citizens in the rest of India, without the previous special provisions granted by Article 35A and Article 370.
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Article 370 gave Jammu and Kashmir special status
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 Constitution of Jammu and Kashmir came into effect on 26 January 1957 and defined the framework for the government of the state.
Article 370, incorporated into Part XXI of the Indian Constitution, gave Jammu and Kashmir special status. It was inserted on 17 October 1949 and exempted the state from the complete applicability of the Indian Constitution. The Article conferred powers on Jammu and Kashmir to have a separate constitution, a state flag, and autonomy over internal administration. It also provided for a constituent assembly in the state, which would decide the extent to which the Indian Constitution would apply to the state. The assembly could also recommend the abrogation of Article 370, in which case the Indian Constitution would have applied in full.
The special status granted to Jammu and Kashmir under Article 370 was controversial and regarded as divisive due to the privileges it gave to the state. These included special privileges for permanent residents in matters such as residence, property, education, and government jobs. The state also had the power to formulate laws for permanent residents and determine who qualified as one.
On 5 August 2019, the special status granted to Jammu and Kashmir under Article 370 was revoked by the Indian government through a presidential order. This order made the Indian Constitution applicable to the entire state of Jammu and Kashmir, and the Constitution of Jammu and Kashmir ceased to be applicable. The revocation was accompanied by the cutting off of communication lines in the Kashmir Valley, the deployment of additional security forces, and the detention of several leading Kashmiri politicians.
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Jammu and Kashmir has its own flag
Jammu and Kashmir is the only state in India that has its own constitution and flag. The state flag of Jammu and Kashmir was a symbol used in the former Indian state of Jammu and Kashmir between 1952 and 2019, under the special status accorded to the region by Article 370 of the Constitution of India. The flag was a red-and-white flag with a representation of a plough and three constituent regions of the state. The three stripes on the flag represented the three distinct administrative divisions of the state: Jammu, Kashmir, and Ladakh. The red colour symbolised workers and labourers, while the white plough in the middle symbolised the peasants.
The Constitution of Jammu and Kashmir, in force until August 2019, made it mandatory to hoist the state flag alongside the Flag of India. The youth wing of the National Conference launched a campaign encouraging people to use the state flag as their profile image on social media accounts, emphasising that the state flag did not undermine the national flag's status. However, in 2015, the newly elected Bharatiya Janata Party (BJP) members refused to hoist the state flag in their offices and contested the High Court's order to do so. On 5 August 2019, a new Presidential order was issued, stating that all provisions of the Indian Constitution would be applicable to Jammu and Kashmir, and the state flag lost its official status.
The Constitution of Jammu and Kashmir provided a framework for the state's government and granted certain powers and privileges to its residents. It defined the concept of permanent residency, which was later clarified by the Supreme Court to mean that permanent residents of Jammu and Kashmir are citizens of India, with no dual citizenship. The Constitution also granted executive powers to the governor and provided for a bicameral system with members elected by the public in the Vidhan Sabha.
The special status of Jammu and Kashmir under Article 370 was established through the Delhi Agreement between Prime Minister Jawaharlal Nehru and Abdullah of the Jammu & Kashmir National Conference, recognising the state's autonomy while declaring it an integral part of India. This agreement extended provisions of the Indian Constitution regarding citizenship and fundamental rights to the state and granted the central government control over specific subjects. However, matters related to defence, foreign relations, communication, and finance remained under the jurisdiction of the Indian Constitution.
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The state has autonomy in internal administration
Jammu and Kashmir's special status was revoked by the Union Government on 5 August 2019, through a presidential order that made the Indian Constitution applicable to the entire state. This order, called The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272), was issued under Article 370, which had previously given Jammu and Kashmir the power to have a separate constitution, a state flag, and autonomy related to internal administration.
Article 370 of the Indian Constitution gave Jammu and Kashmir a special status, allowing it to have its own constitution and autonomy in internal administration. The state's Constituent Assembly was authorised to recommend the extent to which the Constitution of India would be applicable to the state. The Constituent Assembly could also recommend the abrogation of Article 370 altogether. However, the Assembly dissolved itself without recommending its abrogation, and Article 370 became a permanent feature of the Indian Constitution.
The Constitution of Jammu and Kashmir, which came into effect on 26 January 1957, defined the framework for the government of the state. It provided justice, freedom, fraternity, and equality to the residents of the state. The state constitution could be amended by an Act of the Legislative Assembly of the state, passed by at least two-thirds of its membership.
The state of Jammu and Kashmir had autonomy in various internal administrative matters. For example, the Union Legislature had very limited jurisdiction over Jammu and Kashmir compared to other states. Until 1963, the Parliament could only legislate on subjects contained in the Union List and had no jurisdiction over the Concurrent List under the 7th Schedule with Jammu and Kashmir. The Parliament had no power to legislate on Preventive Detention laws for the state; only the state legislature had this power. Additionally, the Union of India could not declare a Financial Emergency under Article 360 in the state. The Union could only declare an emergency in the state in the case of War or External Aggression. No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof would be effective in the state unless it was made at the request or with the concurrence of the state government.
Furthermore, Jammu and Kashmir was the only state that did not have to give a detailed record of the money flowing into the state and how it was used. The state also had the power to determine who was a 'permanent resident', which was a unique concept defined by the Constitution of Jammu and Kashmir. Only permanent residents could own property in the state, and this was a special right and privilege granted by Article 35A of the Indian Constitution.
The revocation of Jammu and Kashmir's special status in 2019 sparked protests and demonstrations in various parts of the world, including Birmingham, Toronto, Paris, Melbourne, Berlin, and Seoul. Protesters denounced the Indian government's decision to abrogate the state's autonomous status and expressed concerns about the potential change in the demography of Kashmir.
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The state defines its own permanent residency
Jammu and Kashmir is the only state in India that has its own constitution. The constitution was adopted on 17 November 1956 and came into effect on 26 January 1957. It was rendered infructuous on 5 August 2019 by a presidential order, making the Indian Constitution applicable to the entire state.
The state's constitution was formed by the Jammu and Kashmir Constituent Assembly, which was created by the Indian Constitution. The Constituent Assembly was formed following the state's accession to India in October 1947. The Assembly sat for 56 days over a 5-year period and adopted the Jammu and Kashmir Constitution in 1956.
The Jammu and Kashmir Constitution defines the concept of 'Permanent Residency' in Part III. Permanent residents of Jammu and Kashmir are citizens of India, and there is no dual citizenship. The state legislature determines who is a permanent resident, and this is outlined in Article 35A of the Indian Constitution. This article was added in 1954 and gave the Jammu and Kashmir State Legislature "complete authority" to decide the 'permanent residents' of the state and grant them special rights and privileges. These include rights and privileges in state public sector jobs, the acquisition of property within the state, scholarships, and other public aid and welfare programmes.
The criteria for being a permanent resident of Jammu and Kashmir as outlined in the constitution are as follows:
- Lawfully owning property in Jammu and Kashmir
- Having resided in the state for 10 years before 14 May 1954
- Having migrated to Pakistan on 1 March 1947 but returned to the state for resettlement
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Frequently asked questions
Jammu and Kashmir had its own constitution because of Article 370 of the Indian Constitution, which gave the state special status. This article was incorporated due to commitments between the state and the Indian government, and it allowed Jammu and Kashmir to have its own constitution, a state flag, and autonomy in internal administration.
Article 370 is a clause in the Indian Constitution that was designed to protect the rights of Jammu and Kashmir to draft its own constitution and decide on the extension of powers to the Central Government. It was deemed a temporary provision to facilitate the accession of the state to the Union of India.
The Constitution of Jammu and Kashmir was adopted on 17 November 1956 and came into effect on 26 January 1957.
No, on 5 August 2019, the Constitution of Jammu and Kashmir was rendered infructuous by a presidential order, making all the provisions of the Indian Constitution applicable to the state. This decision was upheld by the Supreme Court of India.
