Special Status of Jammu and Kashmir

(Project Report)

Submitted to:

Mr. Ashutosh Kr. Aahire

Faculty Member of Political Science

Submitted by:

Pratyush Pandey
B.A.LL.B. (Hons) Student
Semester – III, Section B, Roll number 103.

Political Science Project

Date of Submission: 18.08.2018

Hidayatullah National Law University

Uparwara Post, Abhanpur, Naya Raipur – 493661 (C.G.)
 Declaration

I hereby declare that this research work titled ‘Special Status of Jammu and Kashmir' is my
own work and represents my own ideas and where others ideas or words have been included.
I have adequately cited and referenced the original sources. I also declare that I have adhered
to all principles of academic honesty and integrity and have not misrepresented or fabricated
or falsified any idea/data/fact/source in my submission.

Pratyush Pandey
Semester – III,
Section – B
Roll No :- 103
 Acknowledgments

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words
is beyond the domain of my lexicon

This project wouldn’t have been possible without the help of my teacher Mr. Ashutosh
Aahire Faculty Member in Political Science at HNLU, who had always been there at my side
whenever I needed some help regarding any information. She has been my mentor in the
truest sense of the term. The administration has also been kind enough to let me use their
facilities for research work. I thank them for this.

Pratyush Pandey,
Semester – III,
Section – B,
Roll No:- 103
 TABLE OF CONTENTS

Declaration ii

Acknowledgements iii

Introduction 5

Review of Literature 6

Research question 7

Objectives 7

Methodology of study 7

Sources of data 8

Scope and limitation 8

Organisation of study 8

Historical background 9

Issues before court to grant special status 10

What is a special status? 11

What does special status offer? 12

Distinction between Indian and J&K constitution 13

Procedure for amendment of state constitution 17

Incorporation of article 35A in Indian constitution 18

Demand for abolition of article 370 20

Summarization of facts and figures related to Special status of J&K 21

Conclusion and suggestions 23

References 24
 Introduction
Article 370 of Indian constitution has been a subject of debate since long time now. There

was a prize that was awarded to Sheikh Mohammed Abdullah for Integrating Jammu and

Kashmir with India and this award has proved to be a debacle thanks to the irrationality of

this law and its incompatibility with political and legislative structure of India. India is a

diverse nation closely knit by the federal laws which provide uniform treatment to all regions

and further promote the sense of integrity amongst all regions. However J&K today stands

alienated from the great Indian story due to the existence of article 370. The constitutional

History of J&K is much more than simply setting forth the outlines of the state government.

And when it is explained Vis-à-vis Article 370 of the Indian Constitution, it assumes more

color & significance. In fact, people in Kashmir live a life that is completely different from

other Indians as don’t enjoy the same rights and safeguards that their fellow Indians do. The

major effect of this clause falls on the secular character of Indian union. Kashmir is a Muslim

dominated state however has sizeable population of Hindus and Sikhs. In the past, there have

been numerous incidents of communal violence which led to migration of Hindus to other

parts of the nation. Further, Jammu and Kashmir has been a hotbed for corruption and

autocratic rule by the state governments thanks to the greater power they enjoy. The

economic prosperity of the people has also been affected as the state has limited revenue

sources and the major aid which comes from the union government goes into law

enforcement bodies. Having said all this, one would only recommend for the abolition of the

special status awarded to the state. But the issue is not simple enough as any attempt to

modify or delete the article would lead to problems that go beyond political landscape. But at

the same time, the people of Kashmir wouldn’t be able to prosper until they are fully

integrated with the nation. But before attempting such amendments Indian government needs
to win the faith of Kashmiris who have been victims of the cross border politics of India and

Pakistan.

Review of Literature

Article 370 : A Constitutional History of Jammu and Kashmir, A.G. Noorani

This collection of documents on Article 370 of the Constitution of India contains ‘temporary

provisions’ with respect to the State of Jammu and Kashmir. This book presents documents

on the five-month long negotiations which preceded its enactment on 17 October 1949. It

explains the significance of the article, describes how it was eroded, and traces the

Constitutional evolution of the State and its relationship with the Union of India thereafter. It

covers the period from 1946 to 2010. From Jammu and Kashmir’s accession to India in 1947

to the various negotiations thereafter, including Sheikh Abdullah’s arrest to the framing of the

Constitution of Jammu and Kashmir, and the replacement of Sadar–i–Riyasat, this book

examines in detail the little-known constitutional history of the state.

Research Question-
I. What is the historical background of Article 370?
II. What are features to acquire a special status?
III. What are the challenges Jammu and Kashmir is facing due to its own Constitution?

Objectives-
The primary objectives of study -

I. Is to understand what is a Special status.

II. Is to study the Prospects of Article 370.

III. Is to study the overall purview of special status of Jammu and Kashmir.

Methodology of Study-
This project work is descriptive & analytical in approach. It is largely based on secondary &
electronic sources of data. Internet & other references as guided by faculty of political
science are primarily helpful for the completion of this project.
Sources of Data-
In the project report secondary sources of data has been used like books, e-articles, journals,
reports, internet newspaper, articles etc.

Scope & Limitation-

The scope of study includes the purview within which the project work lies. This topic has
been clearly enunciated with the help of articles from magazines, newspapers and other such
e-article databases that have been explored. The subject explores the definition of direct
democracy its types, how it has evolved from time, how it differs with other democracies,
does it uphold the democratic principles of democracy and how direct democracy is relevant
in today’s world.

Organisation of the Study-

The study has been organised in different sections. It firstly deals with the historical
background of article 370. It then explains what actually does special status mean and what
does it offer. It explains what issues were in front of the court to grant special status to J&K.
the distinction between Indian and the state constitution have been defined thoroughly. It then
explains the issues regarding the abolition of 370.
 SPECIAL STATUS OF JAMMU AND KASHMIR

HISTORICAL BACKGROUND :

Jammu & Kashmir has the contrast of being the only state in the Indian Union that negotiated

in terms of accession. The then ruler (Maharaja Hari Singh) of Jammu & Kashmir at the time

of independence from the British rule decided not to join either India or Pakistan and thereby

remain independent. But then after 2 months on 6th October 1947, the border areas (some of

which is now called PoK) of Jammu & Kashmir were attacked by the Azad Kashmir Forces

supported by the Pak Army. Subsequently, after the attack, the ruler decided to join India

because of their own lack of Army and Weapons. So in October 1947, accession was made

by the ruler considering certain promises made by Pt. Jawahar Lal Nehru(The then Prime

Minister of India). It was the aftereffect of these promises that Article 370 was included in

the constitution of India. And only matters related to Defense, Foreign relations,

Communication and Finance of Jammu & Kashmir comes under the jurisdiction of

Constitution of India.

Thus, the special power and autonomous status give the state of J&K the right to have its

separate constitution and flag, unlike others.

 ISSUES BEFORE THE COURT TO GRANT SPECIAL STATUS:

The Centre asked the Supreme Court to debate on the special status granted to the State of

Jammu and Kashmir. Jammu and Kashmir High Court earlier ruled that Article 370 assumed

a place of permanence in the Constitution and the feature was beyond amendment, repeal or

abrogation. It also observed that the President under Article 370 (1) was conferred with

power to extend any provision of the Constitution to the State with such “exceptions and

modifications” as may be deemed fit subject to consultation or concurrence with the State

government. It said that J&K, while acceding to the Dominion of India, retained limited

sovereignty and did not merge with it. It also clarified that Article 35A gave “protection” to

existing laws in force in the State. Article 35A of the Indian Constitution empowers the J&K

state's legislature to define “permanent residents” of the state and provide special rights and

privileges to those permanent residents. In this regard a PIL plea was filed contending that the

J&K government was discriminatory against non-residents as far as government jobs and real

estate purchases were concerned. The Supreme Court Bench agreed to schedule the case

before a three-judge Bench after six weeks.

What is a special status?

A State is said to have special status if all the provisions of a Union don’t apply to that state.

Different states may have different provisions. Article 370[1] of the constitution of India

gives such special status to the state of Jammu and Kashmir. Article 371 of the Indian

Constitution provides special status to 10 other states which are Assam, Nagaland, Sikkim,

Manipur, Mizoram, Goa, Andhra Pradesh, Arunachal Pradesh, Maharashtra and Gujarat.
What does special status offer?

The State of Jammu and Kashmir has its own Constitution apart from Indian constitution.

This state follows ‘dual citizenship’- Citizenship of Jammu and Kashmir and India. The

residuary power of the state lies with the Legislature of the Jammu and Kashmir and not the

Parliament of India. Except for defence, foreign affairs, finance and communications, the

Parliament needs the state government’s concurrence for applying all other laws. The

national emergency declared in the ground of war or external aggression shall have an

automatic extension to the State. The national emergency proclaimed on the grounds of

armed rebellion, shall not have an automatic extension to Jammu and Kashmir. The Governor

of the State is to be appointed only after consultation with the Chief Minister of that State.

Financial Emergency under Article 360 of Indian constitution cannot be imposed on the

State. Directive Principle of Policy and Fundamental duties enshrined in the Indian

constitution are not applicable to Jammu and Kashmir. Apart from the President‘s rule, the

Governor’s rule can also be imposed on the State for a maximum period of six months. The

preventive detention laws as mentioned in Article 22 of Indian constitution do not have an

automatic extension to the State. The name, boundary or territory of the State of Jammu and

Kashmir cannot be changed by the Parliament without the concurrence of the State

Legislature. Article 19(i) (f) and 31 (2) of Indian constitution have not been abolished for this

State and ‘Right to property’ still, stands guaranteed to the people of Jammu and Kashmir.
 DISTINCTION BETWEEN INDIAN AND J&K

CONSTITUTION :

The Constitution of J&K is different from that of other states in the following aspects:

Fundamental rights, fundamental duties and DPSP :

 Part IV Principles of State Policy (DPSP) and Part IVA i.e. Fundamental

Duties are not applicable to the State of Jammu & Kashmir where on the

other hand it is applicable to other states. DPSP actually means that the

states are required to do some things for the welfare of the community.

 Fundamental Right to Property is still guaranteed in J&K i.e. Articles 19(1)

(f) and 31(2) of the Indian Constitution are applicable in this state.

 The only Fundamental Right which has been added in the history of Indian

Constitution which Right to Education is not extended to the State of J&K.

 A special constituent assembly set up by the State has framed a separate

constitution of this state and it is the only Indian State that has its own

official flag.

It is the only state which does not have to provide a detailed record of money flowing in the

state and where and how is it used. Also, Land or Property of this state cannot be purchased

by the Indians of other states.

Without the consent of legislature, parliament cannot make any law relating to :

 Modification of name or territories of the state.

 The international agreement affecting the final settlement of any part of the

territory of the state.

In respect of J&K, the residuary power is with the state government and not with the Union

of India.

The permanent residents of the J&K state have been granted with some special provisions

with respect to employment under state; settlement of the state; attaining of immovable

property in state etc.

Any amendment in the Constitution of India cannot extend to J&K unless it is extended under

Article 370(1) by the order of the president.

Emergency provisions:
  President cannot declare an emergency under Article 352 of the constitution of

India for the state of Jammu & Kashmir without the consultation of the State

Governor.

 Financial emergency (allowances reduction & salaries) under Article 360 cannot

be declared by the Union of India in relation to J&K. Only in a situation of War

and External Aggression, the Union can declare an emergency.

 Governor’s rule has to be imposed for breaking down the constitution of the state

of Jammu & Kashmir. Thus on the ground of failure to comply with the directions,

the Union has no power to suspend the constitution of the State.

High court of J&K

Limited power rests with the High Court of J&K as compared to other High Courts within

India. It doesn’t have the power to declare any law unconstitutional and also it can issue writs

only for the enforcement of fundamental rights, unlike other High Courts which can issue

writs under Article 226 in relation to other matters also.

Official languages:

The official language of the state is Urdu but for official purposes, the use of English is

permitted unless the state legislature provides otherwise. Provisions of Part XVII is

applicable only partly to J&K. It is applicable only when it relates to:

 1. The Official language of the Union.

2. The official language for communication between one state and another; or

between a state and the Union.

3. The Language of the proceedings in Supreme Court.

 Procedure for amendment of state constitution :

The provisions of the Constitution of the State can be amended by the Legislative Assembly

Act of the state passed by not less than two-thirds of the total members. President’s approval

is needed to come into effect if an amendment seeks to affect the Governor or Election

Commission. Extension of Amendment to the State of J&K can only be done by an order of

the President under Article 370(1). Whether Article 370 can be amended when the constituent

assembly of the State no longer exists is still a debatable question.

 Incorporation of article 35A in the Indian constitution:

Whether the president has the power to amend the constitution?

Article 35A has been incorporated in the Constitution by Presidential Order which states

about the rights and privileges of the permanent resident of the Jammu and Kashmir which

exclude any person from all State’s benefits who is not the permanent resident of the State.

Now the question arises that whether the President of India has the power to amend the

Constitution? It is observed that under Article 123, the president of India has power to make

ordinance in the case of urgency when either house of the parliament is not in session and

that too for a shorter period i.e. for a period of six months. It is an exception in making a law,

not a general rule or permanent measure. Then nowhere in Article 370, the President of India

has the power to amend the constitution or insert a new article. It gives power to the president

only to make exceptions or modifications with the concurrence of the Government of state.

And under 368 the Parliament has the power to amend the constitution and the president does

not have the power to amend. In Re Delhi Laws Act1 it was held that the word ‘modify’

means the only alteration without radical transformation. But in Puranlal Lakhanpal v.

President of India & Ors.2 it was held by the court that the president had the power to make

the modification and that the word modification can be interpreted to include ‘radical

1
1951 AIR 332
2
1961 AIR 1519
transformation’ and also it is considered that the widest meaning should be given to the word

‘modification’ and in that sense, it should include the amendment.

Therefore, we can conclude that the president has the power to make radical transformations

as there is no reason to limit the meaning of the word ‘modification’ under Article 370(1) of

the Indian constitution.

 Demand for abolition of Article 370:

There are arguments provided by both, those who are in favour of and those who are against

the abolition of this Article. Those who are in favour say that it has designed certain mental

barriers. It is also claimed by them that it the root cause of all the problems in the state of

J&K. Also, it is believed that it is Article 370 which encourages extremists activities in J&K

and other parts of the country. It is also argued that it was a temporary arrangement and it

was supposed to wear down gradually and that it is like a reminder to the Muslims of J&K

that they still have to coalesce with the rest of the country. Also, the people who are against

Article 370 provide reasons that it should be abolished s in order to promote National

Integration and they cite this by a slogan i.e. “One Nation, One Citizenship”.

Whereas on the other hand, those who are against the abolition of this Article argue that it

will have serious consequences. It is contended that it will encourage extremist to demand

election which will lead to the internationalization of the issue of J&K. It is further argued

that the contention that it will give rise to extremists activities is groundless as the states

which don’t have any special status like the state of Assam and Punjab have also faced such

problems. It will not only violate the grave undertaking given by India through accession but

would also give unnecessary distrust in the minds of the people of J&K, making the issue

more sensitive.
Summarization of facts and figures related to special

status of Jammu and Kashmir :

1. According to the Constitution of India, Article 370 provides temporary provisions to the

state of Jammu and Kashmir, granting it special autonomy.

2. The article says that the provisions of Article 238, which was omitted from the

Constitution in 1956 when Indian states were reorganized, shall not apply to the state of

Jammu and Kashmir.

3. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft

Article 370.

4. In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh

Abdullah to consult Ambedkar (then law minister) to prepare the draft of a suitable article to

be included in the Constitution.

5. Article 370 was eventually drafted by Gopalaswami Ayyangar

6. Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was also

a former Diwan to Maharajah Hari Singh of Jammu and Kashmir

7. Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under

Temporary and Transitional Provisions.

8. The original draft explained "the Government of the State means the person for the time

being recognized by the President as the Maharaja of Jammu and Kashmir acting on the

advice of the Council of Ministers for the time being in office under the Maharaja's

Proclamation dated the fifth day of March, 1948."

9. On November 15, 1952, it was changed to "the Government of the State means the person

for the time being recognized by the President on the recommendation of the Legislative

Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting

on the advice of the Council of Ministers of the State for the time being in office."

10. Under Article 370 the Indian Parliament cannot increase or reduce the borders of the

state.
Conclusion & Suggestions :
As per what constitutional experts say Article 370 should not be repealed or abolished.

Rather it should be extended to the remaining states of India. Extension of such a provision to

other states would provide greater freedom to them for making laws. And such an Autonomy

will give greater scope for development. But for doing this centre should continue to support

backward states which are ponderously dependent on Central Government Aid.

Also, Armed Forces Special Powers Act (AFSPA) has been enforced in Jammu & Kashmir

since 1990, which gives provides special power to Indian security forces. Therefore a special

status should be there if such a rule is implemented as it cannot be denied that it is a disturbed

zone. Also, this rule is not helping the state as it doesn’t permit any person living outside the

territory of J&K to buy any property here which eventually hampers the development scene

of the state and that is why the state lags behind in Industrial growth. There are lesser job

opportunities for people and as no outside companies can set up here, therefore it leaves a

blank in the infrastructure scene. Thus, in coming years we’ll look upon the situation of J&K

and thus make an impactful decision in regards to the on going situation.

REFERENCES :

Bibliography :

Article 370 : A Constitutional History of Jammu and Kashmir, A.G. Noorani

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