President Ram Nath Kovind today, promulgated the Constitution (Application to Jammu & Kashmir) Order, 2019 (the Order), in concurrence with the Government of State of Jammu & Kashmir, with immediate effect.
The order supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954 and states that all the provisions of the Constitution of India shall apply to the State of Jammu and Kashmir (J&K).
The Order has also added a clause to Article 367 of the Constitution, so far as the State of J&K is concerned, which reads as under:
"(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir—
(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
(d) in proviso to clause (3) of article 370 of this Constitution, the expression "Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly of the State".
Article 370 explained
The Indian Independence Act, 1947 which brought an end to the British colonization in India, introduced the Instrucment of Accession (IoA). The Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan.
J&K initially decided to remain independent and signed standstill agreements with India and Pakistan. However, the state ended up signing an IoA with India in return for its help to save the state from an invasion by Pakistan.
The original accession of state was on three matters, i.e., defence, foreign affairs and communications. At the time of drafting of the Constitution, the representatives to the Constituent Assembly of the state proposed that only those provisions of the Indian Constitution which correspond to the original Instrument of Accession should apply to the State.
Accordingly, Article 370 was incorporated in the Indian Constitution. It gives special status to the state of Jammu and Kashmir and permits the state to draft its own Constitution. It restricts Parliament's legislative powers in respect of J&K in as much as it stipulates that the articles of the Constitution, other than those pertaining to defence, foreign affairs and communications, would apply to the state only with the concurrence of the State's constituent assembly.
The provision was incorporated in the Constitution on October 17, 1949, in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. As evident from the title of the Part, it was supposed to be a temporary provision and its applicability was projected to last till the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370, leaving the status of the provision on a cliffhanger. The provision was later held to have acquired permanent status by way of rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.
This implied that to apply a central law to the state on subjects included in the Instrument of Accession, mere "consultation" with the state government is required. However, to apply a central legislation to matters other than defence, foreign affairs and communications, "concurrence" of the state government was mandatory.
The aforementioned Presidential order has removed the special status of the state and has placed it at par with other states of the country.
Read the Order