Constitution of Jammu and Kashmir


The Constitution of Jammu and Kashmir was the legal document which established the framework for the state government of the Indian state of Jammu and Kashmir. 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 an order signed by the president of India and ceased to be applicable on that date.
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 Constitution of India stated that Parliament of India and the Union government jurisdiction extends over limited matters with respect to State of Jammu and Kashmir, and in all other matters not specifically vested in Federal government, actions have to be supported by state legislature. Also, unlike other states, residual powers were vested with the state government. Because of these constitutional provisions, the State of Jammu and Kashmir enjoyed a special but temporary autonomous status as mentioned in Part XXI of the Constitution of India. Among notable and visible differences with other states, till 1965, the head of state in Jammu and Kashmir was called Sadr-i-Riyasat whereas in other state, the title was Governor, and the head of government was called Prime Minister in place of Chief Minister in other states.
On 5 August 2019, the President of India issued a presidential order, namely, The Constitution Order, 2019 under Article 370 making all the provisions of Constitution of India applicable to the State of Jammu and Kashmir and this has rendered the Constitution of Jammu and Kashmir infructuous from that date. Now the Constitution of India is applicable to Jammu and Kashmir, like all other Indian states.

Historical aspect

India gained its independence from the United Kingdom on midnight of 15 August 1947, and simultaneously Pakistan was created as a new country as a result of the partition of India. Jammu and Kashmir, then a princely state under suzerainty of British Monarch, and ruled by Maharaja Hari Singh who tried to avoid declaring his state's accession to either of the two dominions at the time of independence. Maharaja Hari Singh signed a standstill agreement with Pakistan. However, on 6 October 1947, Pakistani Muslim tribes, supported by the government of Pakistan, attacked Jammu and Kashmir on the behest of Pakistan to achieve forcible accession to Pakistan. Maharaja Hari Singh requested assistance from India, and when India requested an Instrument of Accession to India, the Maharaja signed it so that India could help in defence.
The Instrument of Accession gave only limited powers to the Government of India, only about the three subject matters of Foreign affairs, Defence and Communications. It was similar to several hundred others IoA signed between the Government of India and other princely states. Whereas the other states later signed merger agreements, the relationship of Jammu and Kashmir with the Union of India was governed by special circumstances. In view of them, the Article 370 was incorporated in the Constitution. The Constitution of Jammu and Kashmir Maharaja Dr. Karan Singh had signed into law in 1957.

Salient features

As of 2002, 29 amendments were made to the Constitution. The Constitution, as of 2002, had 158 articles divided into 13 parts and 7 schedules. The divisions of articles is as follows. The numbers in braces after show the articles included in a particular part.
Articles 148 to 152 have been omitted in Part XIII.
Schedules:
Although India has a unitary citizenship, Constitution of Jammu & Kashmir defines a concept of Permanent Residency, in Part III. Hurriyat often spread lies on the concept of Permanent Residency and falsely claims that the people of J&K enjoys dual citizenship. However, the stand of Supreme court is very clear and to put in its words-
“We may also add that permanent residents of Jammu & Kashmir are citizens of India, and there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world.”
--Supreme Court of India.

Preamble

Preamble to the Constitution of Jammu and Kashmir is as quoted below.
The preamble resembles almost verbatim to the Preamble to the Constitution of India.

Jurisdiction of Parliament

Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the State of Jammu and Kashmir was 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 were not applicable to Jammu and Kashmir. Government of India can declare emergency in Jammu and Kashmir and impose Governor's rule in certain conditions. Matters related to Defense, Foreign relations, Communication and Finance of Jammu and Kashmir is under jurisdiction of Constitution of India.
Union Legislature had very limited jurisdiction over Jammu and Kashmir in comparison with 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 with Jammu and Kashmir. The Parliament had no power to legislate Preventive Detention laws for the state; only the state legislature had the power to do so.

Emergency provisions

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 it is made at the request or with the concurrence of the government of the state; or 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.

Fundamental duties, directive principles and fundamental rights

Part IV, Article 36-51 and Part IVA, Article 51A of the Constitution are not applicable to Jammu and Kashmir. In addition to other fundamental rights, Articles 19 and 31 of the Constitution are still applicable to Jammu and Kashmir; hence the Fundamental Right to property is still guaranteed in this state. It is the only state which does not have to give a detailed record on the money flowing in the state and where it is used and how. In the Indian Constitutional history only one Fundamental Right has been added so far and that is Right to Education Act. This right too has not been extended to Jammu and Kashmir.

Official languages

Provisions of Part XVII of the Constitution apply to Jammu and Kashmir only insofar as they relate to the official language of the Union; the official language for communication between one state and another; or between a state and the Union; and 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.

Relations with Government of India

Certain special rights have been granted to the permanent residents of Jammu and Kashmir 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 Jammu and Kashmir. The Provisions of the State Constitution 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 the President's assent to come into effect. No amendment of the Constitution of India shall extend to Jammu and Kashmir unless so extended by an order of Jammu and Kashmir President under Article 370.
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 the State of Jammu and Kashmir is and shall be an integral part of the Union of India 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, of the Constitution of India as applicable in relation to the State and Art. 147..