Accession of J&K to India
Special Position of Jammu & Kashmir
The state of Jammu and Kashmir enjoys special status among the states in India under Article 370 of the Constitution. This state enjoys special position because of the special circumstances under which it was brought under the governance of the Union of India.
During the British period, the state of Jammu and Kashmir was ruled by a hereditary king. Like many rulers of the Princely States, Maharaja Hari Singh, the ruler of Kashmir, joined the Dominion of India by signing the Instrument of Accession on October 26, 1947.
India agreed to accept the accession of Jammu and Kashmir on the request of the Maharaja, who had found it necessary following the attack of the Azad Kashmir forces in the wake of the formation of Pakistan.
Accordingly the subjects of Defence, External Affairs and Communication in respect of Jammu and Kashmir came under the jurisdiction of Dominion of India. With the implementation of the Constitution in 1950, the state was included in Part B of the first Schedule.
Despite being a member of the Part E3 states, the part in which the erstwhile big Princely states were placed, special provisions were devised for the governance of the state of Jammu and Kashmir.
These provisions were different from those meant for other states of the part B. These were incorporated in the Article 370 of the Constitution. According to the provisions of Article 370, the state was given a separate Constituent Assembly, consisting of the representatives of the people of the state. The aim of the Constituent Assembly was to write the constitution of the state and demarcate the jurisdiction of Union of India over the state of Jammu and Kashmir. The provisions of the Constituent Assembly were; applied as interim arrangements.
As in the cases of the erstwhile princely states, the Government of India was empowered to exercise control over all issues mentioned in the Union List. In this case, the Government of India had given public assurance that the Accession of this state to the Union of India would be subject to the confirmation by the people of Jammu and Kashmir.
The Government of India in turn put the condition on the Maharaja that following the accession the Maharaja would introduce a popular government. It meant that he would abolish the hereditary rule.
The accession was confirmed by the people of Jammu and Kashmir through their representatives in the Constituent Assembly of state. But it was done on the condition that Jammu and Kashmir would be governed by different rules to be framed by the Constituent Assembly.
The suggestions of the Constituent Assembly of Jammu and Kashmir were incorporated in Article 370 of the Constitution of India. The continuation, amendment or the suspension of this article cannot be done without support of a majority not less than two thirds of the membership of legislation Assembly of Jammu and Kashmir, which means people of the state.
The President of India gave his assent to the recommendations of the Constituent Assembly by making the Constitution (Application to Jammu and Kashmir) Order, 1950, in consultation with the Government of Jammu and Kashmir.
This Order specified that the Parliament of India would be competent to make laws relating to three areas – Defence, Foreign Affairs, Communication, i.e., issues agreed upon in the Instrument of Accession. All other issues were to be administered according to the Constitution of Jammu and Kashmir.
Again, in 1952, an agreement was signed between the state government and the Union of India. This agreement brought all issues mentioned in the Union List, not only three issues of Defence, Foreign Affairs and Communication, under the jurisdiction of the Union Government, pending the decision of the Constituent Assembly of Jammu and Kashmir.
In 1954, the Constituent Assembly of Jammu and Kashmir ratified the Accession to India as well as the agreement between the state government and the Union of India. The President in consultation with the state government made the Constitution (Application to Jammu and Kashmir) Order, 1954.
This Order implemented the agreement of 1952 signed between the state government and the Union government and ratified the Constituent Assembly. This Order also super-ceded the earlier Order of 1950.
The Order of 1952 expanded the scope of jurisdiction of the centre from just three subjects of Defence, Foreign Affairs and Communication mentioned in the Instrument of Accession of Jammu and Kashmir to all subjects mentioned in the Union subjects in the Constitution of India.
This Order was amended seven times between 1963 and 1974. The amended Order brings the entire constitutional position of the state of Jammu and Kashmir within the framework of the Constitution of India, excluding the Constitution of Jammu and Kashmir which was made by the Constituent Assembly of the state.