Special Status of Indian Polity Notes

Jammu & Kashmir for UPSC Exams

Jammu & Kashmir was an Indian state earlier (now a Union Territory) that was located at the
northern point of India and was ruled by a Maharaja. The state shares its boundary with
Afghanistan, Pakistan and China. Both the nations of India and Pakistan moved to assert their
respective portions of the state. But still, the major portion of the original state of Jammu &
Kashmir remains within India. The people of Jammu and Kashmir, lived under a distinct set of
laws and regulations, including those connected to citizenship, possession of property and
fundamental rights, as compared to other Indians.
In this article, let us look at the Special Status of Jammu & Kashmir, its history, provisions and
salient features, Article 370 and its abolition, presidential order and the recent changes in
Jammu and Kashmir for the UPSC IAS Exam.

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Jammu and Kashmir: A Brief History During Independence

In 1947, at the time of independence, the State of Jammu and Kashmir determined not to link
up with either Pakistan or India. India accepted this decision, but Pakistan sought to annex the
state militarily. The Maharaja requested India's support to preserve his territory and save his
people who were being killed and looted by the Pakistani militants. The then Prime Minister
Jawaharlal Nehru agreed to Jammu & Kashmir’s accession to India. The Maharaja signed the
“instrument of Accession” with particular concessions for the autonomy of the state. This
unique status of the state was embodied in Article 370 of the Indian constitution.

Check out the linked article on the Types of majorities in the Indian parliament article 249 for
UPSC now!

Recent news related to the special status

The Supreme Court of India alleged that after the summer vacation the court will start the
hearing of the petition challenging the Union government’s decision to crack down on Article
370 in 2019.
Special Status of Jammu & Kashmir: The Notable
Provisions and Features
● The state of Jammu and Kashmir possesses its own constitution apart from the Indian
constitution.
● This state follows ‘dual citizenship’ - Citizenship of Jammu and Kashmir and India.
● The residual power of the state lies with the Jammu and Kashmir legislature and not the
parliament of India.
● Except for defense, foreign affairs, finance and communications, the Indian parliament
requires the state government’s consent for applying all other laws.
● The national emergency proclaimed on the ground of war or external aggression shall
have an automatic extension to the state.
● The national emergency declared on the grounds of military rebellion, shall not have an
automatic extension to Jammu and Kashmir.
● The Governor of the State is to be nominated only after consultation with the Chief
Minister of the state.
● Fiscal emergency under Article 360 of Indian constitution cannot be levied on the state.
● Directive Principle of State Policy and fundamental duties embodied in the Indian
constitution are not pertinent to Jammu and Kashmir.
● Apart from the president‘s rule, the governor’s rule can also be enforced on the state for
a period of utmost six months.
● The preventive detention laws as cited in Article 22 of the Indian constitution do not
have an automatic expansion to the state.
● The name, frontier or territory of the state of Jammu and Kashmir cannot be altered by
the Parliament without the consent of the state legislature.
● Article 19(i) (f) and 31 (2) of Indian constitution have not been canceled for this state
and the ‘Right to property’ stands ensured to the people of Jammu and Kashmir.

Check out the linked article on the Right to Life (Article 21) for UPSC now!

What is Article 370 of the Constitution of India?

● Article 370 was laid down in the Indian Constitution on October 17th, 1949, as an
‘interim provision’, which exempts Jammu and Kashmir from the Indian constitution and
permits it to formulate its own constitution and limiting the Indian parliament’s legislative
powers in the state.
● In brief, it granted special status to the state, offering the J&K legislature free rein to
formulate its own laws, except in the areas of communications, defense, finance and
external affairs.
● As a consequence, Jammu and Kashmir possessed its own constitution, flag and penal
code.

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Abolition of Article 370 and the Revocation of the Special
Status of Jammu & Kashmir
● The president declared the president’s rule following the end of the tenure of governor’s
rule.
● Using the power under Article 356 (1) (b), the president proclaimed that the powers of
the legislature of the state shall be exercised by or under the jurisdiction of the
parliament.
● With this, the parliament of India was granted the powers of the legislative assembly of
the state of Jammu and Kashmir.
● The president issued a presidential order under Article 370 (1) of the constitution. This
clause allows the president to define the matters, which are pertinent to Jammu and
Kashmir in concurrence with the Jammu and Kashmir government. The order altered
Article 367.
● Article 367 contains direction on how to read or interpret some provisions.
● The revised article proclaims the phrase ‘Constituent Assembly of the State’ in Article
370 (3) must be read to mean ‘Legislative Assembly of the State’.
● Article 370(3) offered that article 370 was to be revised by the concurrence of the
constituent assembly. However, because of the amendment, it can now be done away
with a suggestion of the state legislature.
● In other words, the government utilized the power under 370(1) to modify a provision of
the constitution (Article 367) which, then, amends Article 370(3).
● And this, in turn, becomes the trigger for the legislative resolution 'Resolution for Repeal
of Article 370 of the Constitution of India'.
● As Jammu and Kashmir is under the president rule, the concurrence of the governor is
considered as “Jammu and Kashmir government”.

Check out the linked article on the Article 72 of Indian Constitution for UPSC now!

Special status of Jammu and Kashmir Then and Now

J&K before the abolition of Article J&K after the abolition of Article 370
370
Special status. No Special status.

Dual Citizenship - Citizenship of India and Single Citizenship - Citizenship of India.

Jammu and Kashmir.

Separate flag. No separate flag.

The Right to Information act is not applicable. The Right to Information act is applicable.

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 Right to education was not applicable in J&K Right to education is now applicable in J&K.
earlier.

Citizens from other parts of India were not Citizens from other parts of India are now
allowed to buy property within J&K. allowed to buy property within J&K.

Presidential Order Jammu and Kashmir

Under Article 370 of the constitution of India, the president had the power of issuing
instructions for the application of provisions of the constitution of India with alterations,
exceptions and amendments in the provisions and this power has been maintained in various
cases by the Supreme Court, e.g., in P. L. Lakhanpal Vs. The State of J&K.
For the implementation of other provisions of the constitution of India to the state of J&K, the
only method available was the Constitutional Application Order which was to be done with the
consultation and consent of the state government. The presidential orders, generally speaking,
deal with the below subject matters:
● Augmenting the authority of the parliament to pass laws in the state of J&K out of the
union list.
● Laws pertaining to an increase or decrease in the area of the state.
● Making regulations for the return of the permanent population of the state that migrated
to the territories contained in Pakistan under permit for settlement.
● Providing constitutional protection to the laws in connection with permanent residents of
the state, their unique rights and privileges, occupation under government, purchase of
immovable property, settlement in the state, scholarship.
● Allocating the number of seats in the house of the people, excluding the area occupied
by Pakistan.
● Provision for delimitation of the constituencies of parliament.
● Transfer of magistrates from the high court of J&K or to the said court.
● Exclusion of the state list.
● Provision with regards to the decision impacting the disposition of the state of J&K.
● Procurement and requisition of immovable property in the interest of and at the expense
of the Union.
● Provisions relating to the usage of the official language of the Union and in the trials
before the supreme court.
● Provisions for the declaration of emergency.
● Provisions for non-implementation of the amendments carried out by the parliament of
India in the constitution of India.
● Provisions for governor and the election commission.
In 1954, the Constitutional Application Order 1950 was titled as the Constitutional Application
Order 1954 and its issuance was the initial violation of the constitutional autonomy of the state
of J&K. It peaked with the issuance of the Constitution (Application to J&K) Order, 2019. Article
370 itself was utilized to make it feeble after remaining on the constitution book for 70 years.

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Check out the linked article on the Freedom of Speech and Expression Article 19 for UPSC
now!

Recent changes in Jammu and Kashmir

● Jammu and Kashmir is situated to the north of the Indian states of Himachal Pradesh
and Punjab and to the west of Ladakh, which is also subject to the dispute as a part or
segment of Kashmir and regulated by India as a union territory.
● Some areas have been contested among India and Pakistan since 1947 and among
India and China since 1962.
● The Line of Control splits Jammu and Kashmir from the Pakistani managed territories of
Azad Kashmir and Gilgit-Baltistan in the west and north.
● Upheaval and brutality persisted in the Kashmir valley and following a disputed state
election in 1987, an uprising persisted in protest over autonomy and rights.
● A resolution to abolish Article 370 was enacted by both the houses of the parliament of
India in August 2019. After the Government of India withdrew the special status granted
to Jammu and Kashmir under Article 370 of the Indian constitution in 2019, the
parliament of India enacted the Jammu and Kashmir Reorganization Act, which
included provisions that dissolved the state and restructured it into two union territories
– Jammu and Kashmir in the west and Ladakh in the east. The two union territories
came into being on 31st October 2019, which was commemorated as the National Unity
Day.
○ This also ceased Article 35A.
○ Article 35A had permitted J&K to specify who its ‘permanent residents’ are and
what rights and privileges are linked to such residency.
● At present, the union territory of Jammu and Kashmir is governed under the provisions
of Article 239 of the Constitution of India.
○ Article 239A, initially formulated for the union territory of Puducherry, will also
hold good to Jammu and Kashmir.
● The union territory is within the authority of the Jammu and Kashmir high court, which
also serves as the high court for Ladakh.
● At present, Jammu and Kashmir holds 5 Lok Sabha seats and 4 Rajya Sabha seats.
● The union territory of Jammu and Kashmir was projected to possess a legislature under
the bill, while the union territory of Ladakh is proposed to not possess one.

Check out the linked article on the Article 370 of Indian Constitution for UPSC now!

Conclusion
● The initial step to fix the Kashmir issue is to determine the problems behind the
alienation of Kashmir. Here are some of them:
○ Mishandling of the Kashmir issue by the consecutive central governments of
India, which includes frequent dismissal of state assemblies.
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 ○ The state governments of Kashmir were unsuccessful in distributing the benefits
of growth and advancement to every area of Kashmir.
○ The terrorist and military outfits existing in Pakistan has been constantly
distancing the youth of Kashmir from the democratic form of the Indian
government.
○ The constant presence of the Indian Armed Force or CAPF in the Kashmir
interiors and the improper use of provisions like Armed Forces Special Powers
Act (ASFPA).
● The need of the hour is appropriate integration of Kashmir, Jammu and Ladakh with
India. Inclusion must not be seen in a restricted dimension of territory, but India should
also be capable of winning the hearts of the people of Kashmir.
● Kashmir was and yet is an essential part of India. It has a diverse and secular culture
just like the rest of India. Urgent steps ought to be taken to overcome the gaps of trust
deficit in the minds of Kashmiri youth.
● All Kashmiris must get the due proportion in the growth story of India. Like all other
states in India, there should be sufficient political autonomy in Jammu and Kashmir.

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Check out the linked article on the Article 370 of Indian Constitution for UPSC now!

UPSC Practice Questions on Special Status of Jammu &

Kashmir
Q1. Critically examine the history of why Article 370 of the constitution was formulated in a
certain manner and the significance of the text of the Article from the perspective of the people
of Jammu and Kashmir.

We hope your doubts regarding the Special status of Jammu & Kashmir would have been
addressed after going through the above article. Testbook gives standard quality preparation
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