Special provisions regarding the State of Jammu and Kashmir

13 Jul 2016 14:18:21

Special provisions regarding the State of Jammu and Kashmir

( Source While Paper of Government of India).

  1. The State of Jammu and Kashmir acceded to India on October 26, 1947. The form of Instrument of Accession executed by the Ruler of the State is the same as that of the Instrument executed by the ruler of other acceding States. Legally and constitutionally therefore the position of this State is the same as that of other acceding States. The Government The Government of India , no doubt , stand committed to the position that the accession of this State is subject to confirmation by the people of the State. This, however, does not detract from the legal fact of accession. The State has therefore been included in part B States. In view of the Special problems arising in respect of this State and the fact that the Government of India have assured its people that they would themselves finally determine their political future, the following special provision has been made in the Constitution:

“370. (1).  Notwithstanding anything in this Constitution.

(a). the provisions  of article 238 shall not apply in relation to the State of Jammu and Kashmir.

(b). the power of Parliament to make laws for the said State shall be limited to-

(i). those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specifies in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the dominion Legislature may make laws for that State; and

(ii). Such other matters to the said Lists as , with the concurrence of the Government of the State , the President may by order specify.

Explanation – For the purpose of this article , the Government of the State means the person for the time being recognized by the President as the Maharajas of Jammu and Kashmir acting on the advice of Council of Ministers for the time being in office under the Maharajas’s Proclamation dated the fifth day of March, 1948;

(c) . the provisions of article I and of this article shall apply in relation to that State;

(d). Such of the provisions of this Constitution shall apply in relation to that State to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the concurrence of that Government.

(2). If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) or in the Second proviso to sub-clause (d) of clause (1) be given before the Constituent Assembly for the purpose framing the Constitution of the State in convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3). Notwithstanding anything in the foregoing provisions of this article , the President may, by public notification , declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification “

        The effect of this provision is that the State of Jammu & Kashmir continues to be part of India. IT is a unit of Indian Union and the Union Parliament will have jurisdiction to make laws for this State on matters specified either in the Instrument of Accession or by later additions with concurrence of the Government of the State. An order has been issued under article 370 specifying (1) the matters in respect of which the Parliament may make laws for the Jammu and Kashmir State and (2) the provisions, other than Article 1 and Article 370, which shall   apply to the State (Appendix LVI). Steps will be taken for the purpose of convening a Constituent Assembly which will go into these matters in detail and when it comes to a decision on them, It will make a recommendation to the President who will either abrogate Article 370 or direct that it shall apply with such modifications and exceptions as he may specify

 

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