Tarun asked: Why Article 352 is not applicable in Jammu and Kashmir? What is the rationale?

Ashok Kumar Behuria replies: According to the Constitution of India, there are some special provisions for the State of Jammu & Kashmir (J&K), as in the case of some other states as well.

Part XXI of the Indian Constitution contains such “Temporary, Transitional and Special Provisions. — Arts. 370-371”. This has to be taken in conjunction with Appendix I of the Constitution that contains the Constitution (Application to Jammu and Kashmir) Order, 1954, which came into force on May 14, 1954, superseding the Constitution (Application to Jammu and Kashmir) Order, 1950.

According to the 1954 Constitution Order:

“No Proclamation of Emergency made on grounds only of internal disturbance or imminent danger thereof shall have effect in relation to the State of Jammu and Kashmir (except as respects article 354) [unless—

(a) it is made at the request or with the concurrence of the Government of that State, or

(b) where it has not been so made, it is applied subsequently by the President to that State at the request or with the concurrence of the Government of that State.]”

The rationale for such exceptionalism was to assure the people of the state of India's good will, at a time when-- following the Pakistan-sponsored tribal lashkar invasion of the then princely State of Jammu and Kashmir and its accession to the Indian state in October 1947-- the issue of Kashmir was being debated at the international level, especially at the United Nations (UN), with a noticeable push by powerful countries to pressurise India to accept a UN-mediated plebiscite in a territory that legally and rightfully belonged to India, as per UN resolutions that were constantly being revised to accommodate the sensitivities of Pakistan, the aggressor state, and quite visibly prejudiced against India's legitimate interests.

Posted on July 05, 2019

Views expressed are of the expert and do not necessarily reflect the views of the IDSA or of the Government of India.