Article 370 of the Constitution of India

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.[1] The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the J&K Constituent Assembly later created the state's constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.[2][3]

Purpose

The state of Jammu and Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs and communications. All the princely states were invited to send representatives to India's Constituent Assembly, which was formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states. Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and Mysore. Even though the States Department developed a model constitution for the states, in May 1949, the rulers and chief ministers of all the states met and agreed that separate constitutions for the states were not necessary. They accepted the Constitution of India as their own constitution. The states that did elect constituent assemblies suggested a few amendments which were accepted. The position of all the states (or unions of states) thus became equivalent to that of regular Indian provinces. In particular, this meant that the subjects available for legislation by the central and state governments was uniform across India.[4]

In the case of Jammu and Kashmir, the representatives to the Constituent Assembly[5] requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution.[6] However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.[7][8][9][3]

Text

370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;[lower-alpha 1]
(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 specified 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 in 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 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.[1][10][lower-alpha 2]

(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject 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 Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except 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) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is 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.[11]

Analysis

The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State could not be compelled to accept any future Constitution of India. The State was within its rights to draft its own Constitution and to decide for itself what additional powers to extend to the Central Government. The Article 370 was designed to protect those rights.[12] According to the constitutional scholar A. G. Noorani, the Article 370 records a 'solemn compact'. Neither India nor the State can unilaterally amend or abrogate the Article except in accordance with the terms of the Article.[13]

Article 370 embodied six special provisions for Jammu and Kashmir:[14]

  1. It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
  2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
  3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
  4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.
  5. The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
  6. The Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.

Once the State's Constitutional Assembly convened on 31 October 1951, the State Government's power to give `concurrence' lapsed. After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority provided to extend more powers to the Central Government or to accept Central institutions vanished. Noorani states that this understanding of the constitutionality of the Centre-State relations informed the decisions of India till 1957, but that it was abandoned afterwards. In subsequent years, other provisions continued to be extended to the State with the 'concurrence' of the State Government.[15][16][17]

Presidential orders

In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir made a series of orders.

Presidential order of 1950

The Presidential order of 1950, officially The Constitution (Application to Jammu and Kashmir) Order, 1950, came into force on 26 January 1950 contemporaneously with the Constitution of India. It specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of Accession as required by the clause b(i) of the Article 370.

Thirty eight subjects from the Union List were mentioned as matters on which the Union legislature could make laws for the State. Certain articles in ten of the twenty-two parts of the Indian Constitution were extended to Jammu and Kashmir, with modifications and exceptions as agreed by the state government.[18]

This order was superseded by the Presidential order of 1954.

Presidential order of 1952

The Presidential order of 1952 was issued on 15 November 1952, at the request of the state government. It amended the Article 370, replacing the phrase "recognised by the President as the Maharaja of Jammu and Kashmir" by "recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". The amendment represented the abolition of the monarchy of Jammu and Kashmir.

Background: The Constituent Assembly of Jammu and Kashmir was elected in 1951 and convened on 31 October 1951. The Basic Principles committee of the Constituent Assembly recommended the abolition of the monarchy, which was unanimously approved by the Assembly on 12 June 1952. In the same month, the Hindu-dominated Jammu Praja Parishad submitted a memorandum to the President of India demanding the full application of the Indian Constitution to the State. The Government of India summoned a delegation from Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the State. After discussions, the 1952 Delhi Agreement was reached.[19]

The State's prime minister Sheikh Abdullah was slow to implement the provisions of the Delhi Agreement. However, in August 1952, the State Constituent Assembly adopted a resolution abolishing the monarchy and replacing the position by an elected Head of State (called Sadar-i-Riyasat). Despite reservations on this piecemeal approach to adopting provisions, the Central Government acquiesced, leading to the Presidential Order of 1952. The Legislative Assembly elected Karan Singh, who was already acting as the Prince Regent, as the new Sadar-i-Riyasat.[20][21]

Presidential order of 1954

The Presidential order of 1954, officially The Constitution (Application to Jammu and Kashmir) Order, 1954 came into force on 14 May 1954. Issued with the agreement of the State's Constituent Assembly, it was a comprehensive order seeking to implement the 1952 Delhi Agreement.[22] Arguably, it went further than the Delhi Agreement in some respects.[23]

The provisions implementing the Delhi Agreement were:[24][25]

  1. Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state subjects'). Simultaneously, the Article 35A was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment.
  2. The fundamental rights of the Indian constitution were extended to the state. However, the State Legislature was empowered to legislate on preventive detention for the purpose of internal security. The State's land reform legislation (which acquired land without compensation) was also protected.
  3. The jurisdiction of the Supreme Court of India was extended to the State.
  4. The Central Government was given power to declare national emergency in the event of external aggression. However, its power to do so for internal disturbances could be exercised only with the concurrence of the State Government.

In addition, the following provisions which were not previously decided in the Delhi Agreement were also implemented:

  1. Financial relations between the Centre and the State were placed on the same footing as the other States. The State's custom duties were abolished.
  2. Decisions affecting the disposition of the State could be made by the Central Government, but only with the consent of the State Government.

Background: The State Government's decision to abolish the monarchy led to increased agitation by the Jammu Praja Parishad, which found support among the Ladakhi Buddhists and the Hindu parties of India.[26] In response, Sheikh Abdullah started questioning the value of Kashmir's accession to India, leading to a loss of support among his Cabinet members. On 8 August 1953, Sheikh Abdullah was dismissed from the post of prime minister by the Sadar-i-Riyasat Karan Singh and his erstwhile deputy Bakshi Ghulam Mohammad was appointed in his place. Abdullah and several of his colleagues were arrested and put in prison.[27][28]

The purged Constituent Assembly, with 60 of the original 75 members, unanimously adopted on 6 February 1954, the recommendations of its Basic Principles Committee and the Advisory Committee on Fundamental Rights and Citizenship.[29] According to the Basic Principles Committee:

While preserving the internal autonomy of the State, all the obligations which flow from the fact of accession and also its elaboration as contained in the Delhi Agreement should find an appropriate place in the Constitution. The Committee is of the opinion that it is high time that finality in this respect should be reached and the relationship of the State with the Union should be expressed in clear and precise terms.[28]

The Presidential order of 1954 was issued based on these recommendations.[29]

Further presidential orders

In addition to these original orders, forty seven Presidential orders have been issued between 11 February 1956 and 19 February 1994, making various other provisions of the Constitution of India applicable to Jammu and Kashmir. All these orders were issued with the 'concurrence of the Government of the State' without any Constituent Assembly.[30] The effect of these orders has been to extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India.[31] All these orders have been issued as amendments to the Presidential Order of 1954, rather than as replacements to it, presumably because their constitutionality was in doubt.[32]

This process has been termed the 'erosion' of the Article 370.[32][33]

Autonomy of Jammu and Kashmir: Structure and limitations

India's constitution is a federal structure. The subjects for legislation are divided into a 'Union List', a 'State List' and a 'Concurrent List'. The Union List of ninety-six subjects, including defence, military and foreign affairs, major transport systems, commercial issues like banking, stock exchanges and taxes, are provided for the Union government to legislate exclusively. The State List of sixty-six items covering prisons, agriculture, most industries and certain taxes, are available for States to legislate on. The Concurrent List, on which both the Centre and States may legislate include criminal law, marriage, bankruptcy, trade unions, professions and price control. In case of conflict, the Union legislation takes precedence. The 'residual power', to make laws on matters not specified in the Constitution, rests with the Union. The Union may also specify certain industries, waterways, ports etc. to be 'national', in which case they become Union subjects.[34]

In the case of Jammu and Kashmir, the 'Union List' and the 'Concurrent List' were initially curtailed to the matters ceded in the Instrument of Accession, but they were later extended with the concurrence of the State Government. The 'residual power' continues to rest with the State rather than the Union. According to the State Autonomy Committee, ninety-four of the ninety-seven items in the Union List currently apply to Jammu and Kashmir. The provisions of the Central Bureau of Intelligence and Investigation and preventive detention do not apply. Of the 'Concurrent List', twenty-six of the forty-seven items apply to Jammu and Kashmir. The items of marriage and divorce, infants and minors, transfer of property other than agricultural land, contracts and torts, bankruptcy, trusts, courts, family planning and charities have been omitted, i.e., the State has exclusive right to legislate on those matters. The right to legislate on elections to state bodies also rests with the State.[35]

Applicability of the Indian law to Jammu and Kashmir

Acts passed by Indian Parliament have been extended to Jammu and Kashmir over a period of time.[36]

The non-applicability of National Human Rights Commission (NHRC) Act by claiming recourse to Article 370 was set aside in 2010.[37]

Constitution of Jammu and Kashmir

WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,

having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves—

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among us all;

FRATERNITY assuring the dignity of the individual and the unity of the nation;

IN OUR CONSTITUENT ASSEMBLY this seventeenth day
of November, 1956, do HEREBY ADOPT, ENACT AND GIVE
TO OURSELVES THIS CONSTITUTION."

—Preamble of Constitution of Jammu & Kashmir.[38]

Preamble and Article 3 of the Constitution of Jammu and Kashmir states that the State of Jammu and Kashmir is and shall be an integral part of the Union of India.[38] Article 5 states that the executive and legislative power of the State extend to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India. The constitution was adopted on 17 November 1956 and came into force on 26 January 1957 .

Implications

This article specifies that the State must concur in the application of laws, except those that pertain to Communications, Defence, Finance, and Foreign Affairs.[39]

The 1974 Indira-Sheikh accord between Kashmiri politician Sheikh Abdullah and then Prime Minister Indira Gandhi stated, "The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India".

In notifications issued as far back as 1927 and 1932, the state created various categories of residents – with some being called permanent residents (PRs) with special rights. Though the law did not discriminate between female and male PRs, an administrative rule made it clear that women could remain PRs only till marriage. After that they had to seek a fresh right to remain PRs. And if a woman married someone who wasn’t a J&K PR, she automatically lost her own PR status. But a 2002 high court ruling made it clear that a woman will remain a PR even after marriage to a non-PR, and enjoy all the rights of a PR. A People's Democratic Party government, led by Mehbooba Mufti, passed a law to overturn the court judgment by introducing a Bill styled “Permanent Residents (Disqualification) Bill, 2004’. This was not Mufti’s solo effort. Omar Abdullah’s party, the National Conference, backed this Bill and got it passed in the lower house of the assembly. But it did not ultimately see the light of day for various reasons.[40]

Sheikh Mohammad Abdullah, the state's 'Prime Minister' and leader of the Muslims in the Valley, found the inclusion of Article 370 in the 'Temporary and Transitional Provisions' of the Constitution's Part XXI unsettling. He wanted 'iron clad guarantees of autonomy'. Suspecting that the state's special status might be lost, Abdullah advocated independence from India, causing New Delhi to dismiss his government in 1953, and place him under preventive detention.[41]

In December 2016, the Supreme Court of India set aside a judgement of the High Court of Jammu and Kashmir which stated that Jammu and Kashmir had "absolute sovereign power" on account of Article 370. The Supreme Court held that the state of Jammu and Kashmir has "no vestige" of sovereignty outside the Constitution of India and its own Constitution is subordinate to the Indian Constitution. The Court upheld the applicability of SARFAESI Act to Jammu and Kashmir as it was under the Union list of subjects for which the Indian Parliament is empowered to enact laws for the whole of India, including Jammu and Kashmir.[42][43]

Calls for abrogation

In 2014, as part of Bharatiya Janata Party manifesto for the 2014 general election, the party pledged to integrate the state of Jammu and Kashmir into the Union of India.[44] After winning the elections, attempts were made by the party along with its parent organisation, the Rashtriya Swayamsevak Sangh (RSS), for the abrogation of Article 370.[45] Former prince regent and Congress leader Karan Singh opined that an integral review of Article 370 was overdue and, it need to be worked on jointly with the State of Jammu and Kashmir.[46]

However, in October 2015, the High Court of Jammu and Kashmir has ruled that the Article 370 cannot be "abrogated, repealed or even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution.[47][8] On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that the Article 370 has acquired a permanent status. It stated that, since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfil the mandatory provisions required for its abrogation.[48]

See also

Notes

  1. ↑ Article 238 was repealed by the 7th Amendment in 1956.
  2. ↑ The explanation originally read, "For the purpose of this article, the Government of the State means the person for the time being recognised 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;" This was changed via Ministry of Law order No. C.O. dated 15th November 1952 stating, "In exercise of the powers conferred by Article 370 the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day of November, 1952, the said Article 370 shall be operative with the modification that for the Explanation in Cl. (1) thereof, the following explanation is substituted namely...[Explanation follows]"

References

  1. 1 2 "Article 370: 10 facts that you need to know : Highlights, News - India Today". Indiatoday.intoday.in. Retrieved 2014-08-18.
  2. ↑ The importance of Article 370, The Hindu, 15 October 2015.
    PTI. "Article 370 is permanent, rules J&K High Court". The Hindu. Retrieved 2017-03-25.
  3. 1 2 Article 370 has acquired permanent status: Supreme Court, The Times of India, 4 April 2018.
  4. ↑ Menon, The Story of Integration of the Indian States 1956.
  5. ↑ Noorani, Article 370 (2011, p. 4): The representatives of Jammu and Kashmir were Sheikh Abdullah, Mirza Mohammad Afzal Beg, Maulana Mohammad Saeed Masoodi and Moti Ram Bagda. They joined the Constituent Assembly on 16 June 1949.
  6. ↑ Noorani, Article 370 (2011), Introduction.
  7. ↑ Article 370, granting special status to the state, is permanent: Jammu and Kashmir High Court, The Economic Times, 11 October 2015.
  8. 1 2 The importance of Article 370, The Hindu, 15 October 2015.
  9. ↑ Amitabh Mattoo, Understanding Article 370, The Hindu, 29 May 2014.
    BJP is quiet since I explained Article 370 to Modi: Jethmalani, Deccan Herald, 8 November 2014.
  10. ↑ Article 370 of the Indian Constitution, Kashmir-information.com, archived from the original on 5 January 2013
  11. ↑ "The Constitution of India (1949)" (PDF). Lok Sabha Secretariat. pp. 1122–1123. Retrieved 2 May 2014.
  12. ↑ Noorani, Article 370 (2011), pp. 1-2.
  13. ↑ Noorani, Article 370 (2011), p. 1.
  14. ↑ Noorani, Article 370 (2011), pp. 5-6.
  15. ↑ Noorani, Article 370 (2011), pp. 7-8.
  16. ↑ Tillin, Asymmetric Federalism (2016), p. 546.
  17. ↑ Das Gupta, Jammu and Kashmir (2012), p. 187.
  18. ↑ Das Gupta, Jammu and Kashmir (2012), p. 196–198.
  19. ↑ Das Gupta, Jammu and Kashmir (2012), p. 200.
  20. ↑ Noorani, Article 370 (2011), pp. 8–9.
  21. ↑ Chowdhary, Politics of Identity and Separatism (2015), p. 48.
  22. ↑ Cottrell, Kashmir: The vanishing autonomy (2013), pp. 171–172.
  23. ↑ Das Gupta, Jammu and Kashmir (2012), p. 198–200, 212.
  24. ↑ Das Gupta, Jammu and Kashmir (2012), p. 201–205.
  25. ↑ Das Gupta, Jammu and Kashmir (2012), p. 205–209.
  26. 1 2 Cottrell, Kashmir: The vanishing autonomy (2013), p. 171.
  27. 1 2 Das Gupta, Jammu and Kashmir (2012), p. 210–211.
  28. ↑ Noorani, Article 370 (2011), Section 11.1.
  29. ↑ Noorani, Article 370 (2011), pp. 13-14.
  30. 1 2 Cottrell, Kashmir: The vanishing autonomy (2013), p. 174.
  31. ↑ Noorani, Article 370 (2011), Chapter 11.
  32. ↑ Cottrell, Kashmir: The vanishing autonomy (2013), p. 165.
  33. ↑ Cottrell, Kashmir: The vanishing autonomy (2013), p. 177–178.
  34. ↑ "Central Enactments Applicable To State of Jammu And Kashmir in Alphabetical Order" (PDF). 10 February 2009. Retrieved 23 November 2014.
  35. ↑ "Order extraordinaire: J&K's immunity set aside by the NHRC". October 2010. Retrieved 23 November 2014.
  36. 1 2 Constitution of Jammu and Kashmir (PDF). Official website of Jammu and Kashmir Legislative Assembly on National Informatics Centre, India. Retrieved 3 April 2015.
  37. ↑ "What is Article 370? Three key points". 28 May 2014. Retrieved 8 October 2014.
  38. ↑ Rekha Chowdhary (23 April 2010). "Kashmir vs Women". Retrieved 2 December 2012.
  39. ↑ Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience. New Delhi: Oxford University Press. pp. 151–152. ISBN 0-19-565610-5.
  40. ↑ Jammu and Kashmir has no vestige of sovereignty outside Constitution: Supreme Court, Financial Express, 17 December 2016.
  41. ↑ No sovereignty for J&K, Supreme Court slams High Court for “wrong”, “disturbing” observations, Bar and Bench, 17 December 2016.
  42. ↑ "BJP Manifesto for 2014 General Elections" (PDF). Retrieved 2015-09-17.
  43. ↑ "Omar Abdullah & Ram Madhav start war of words over Article 370 - Economic Times". Economictimes.indiatimes.com. 2014-05-29. Retrieved 2014-08-18.
  44. ↑ Integral review of Article 370 overdue, but needs cooperation not confrontation: Congress leader Karan Singh
  45. ↑ Art 370 permanent…cannot be repealed or amended: HC, The Indian Express, 12 October 2015.
  46. ↑ https://www.hindustantimes.com/india-news/special-status-to-j-k-article-370-not-a-temporary-provision-says-supreme-court/story-wNb5Bz0EOVIDU4NmRn537J.html

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