The State of Jammu and Kashmir holds a special position under the Constitution of India. Though it is one of the States specified in the First Schedule and forms a part of the territory of India as defined in Article 1, all the provisions of the Constitution of India relating to the states do not apply to Jammu and Kashmir. The State alone of all the States of the Indian Union has its own Constitution.
Article 370 under Part XXI of the Indian Constitution (Temporary, Transitional and Special Provisions) accords special status to the State of Jammu and Kashmir. It was incorporated in the Constitution because under the circumstances in which the State acceded to India. The Government of India gave a commitment to the effect that people of Jammu and Kashmir, acting through their Constituent Assembly, were to finally determine the Constitution of the State. Article 370 stipulates that the power of the Parliament to make laws for Jammu and Kashmir. It limited to those matters in the Union List and the Concurrent List. Which corresponds to matters specified in the Instrument of Accession and such other matters. Which the President may specify with the concurrence of the Government of the State.
Clause 3 of Article 370 provides that the President can, by public notification, declare this Article to cease to be operative if the Constituent Assembly of the State recommends so to the President. Recently, political groups have demanded the repeal of Article 370 so that the special status of the State abolished. It pointed out that the Constituent Assembly of the State no longer exists and the President is free to act.
Some of the features of the special relationship of Jammu and Kashmir with the Indian Union are as follows:
Moreover, Jammu and Kashmir have its own Constitution framed by a special Constituent Assembly set up by the State. Only some subjects on the Concurrent List can legislate on by the Union. In the case of other States, the residuary power of legislation belongs to Parliament, but in the case of Jammu and Kashmir. The residuary power belongs to the State Legislature (except in certain matters for which. Moreover, Parliament has exclusive power, e.g. prevention of activities relating to session and secession). No law of preventive detention made by Parliament will extend to that State. However, by the Constitution (Application to Jammu and Kashmir) Order, 1986, Article 249 has been extended to the State. So that it allowed to extend the jurisdiction of Parliament to the State in the national interest by passing a resolution in the Rajya Sabha.
Parliament cannot make any law without the consent of the State Legislature relating to
- Alteration of name or territories of the State.
- International treaty or agreement affecting the disposition of any part of the territory of the State. No proclamation of an Emergency made by the President under Article 352. On the ground of armed rebellion shall have an effect on the State of Jammu and Kashmir without the State Government’s concurrence. The Union has no power to suspend the Constitution of the State on the ground of failure to comply with the directions given by the Union.
Special rights in relation to employment, acquisition of property and settlement have been given to ‘permanent residents’ of the State. The fundamental right of property still guaranteed in this State. No amendment to the Constitution of India is applicable to Jammu and Kashmir unless. It extended to it by an Order of the President under Article 370 (i).