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Article 370 of the Constitution of India

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Article 370 of the Indian constitution is an article that grants special autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions.[1] The state's constituent assembly was empowered to recommend the articles of the Indian constitution to be applied to the state or to abrogate the Article 370 altogether. After the state constituent assembly has dissolved itself without recommending abrogation, the Article 370 is deemed to have become a permanent feature of the Indian constitution.[2]

Purpose

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. In May 1949, the rulers and chief ministers of all the states agreed to accept 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.[3]

In the case of Kashmir, the representatives to the Constituent Assembly[4] 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.[5] 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 October 2015.[6][7][8]

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;[a]
(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][9][b]

(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 provison 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.[10]

Applicability of the Indian law to Jammu and Kashmir

Constitution of India

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 The Constitution (Application to Jammu and Kashmir) Order, 1950 which came into force on 26 January 1950 and was later superseded by the Constitution (Application to Jammu and Kashmir) Order, 1954 which came into force on 14 May 1954.

In addition, 47 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'.[11] 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.[12] This process has been termed the `erosion' of the Article 370.

Central Acts

Acts passed by Indian Parliament have been extended to Jammu and Kashmir over a period of time.[13]

  • All India Services Act
  • Border Security Force Act
  • Central Vigilance Commission Act
  • Essential Commodities Act
  • Haj Committee Act
  • Income Tax Act
  • The Central Laws (Extension To Jammu And Kashmir) Act, 1956
  • The Central Laws (Extension To Jammu And Kashmir) Act, 1968

The non-applicability of National Human Rights Commission (NHRC) Act by claiming recourse to Article 370 was set aside in 2010.[14]

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.[15]

Main article: Constitution of Jammu and Kashmir

See also: Template:PDFlink

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.[15] 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.

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.[16] 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.[17]

Article 370 embodied six special provisions for Jammu and Kashmir:

  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 restricted to the three subjects of defence, foreign affairs and communications.
  3. Other constitutional provisions 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 finalized the scheme of powers and dispersed, no further extension of powers was possible.
  6. The Article 370 could be abrogated or amended only upon 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. This understanding of the constitutionality of the relations between the Centre and the State informed the decisions of India till 1957. However, it was abandoned afterwards.[18]

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.[19]

Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .[citation needed]

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 Kashmiri 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.[20]

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.[21]

Calls for abrogation

In 2014, as part of Bharatiya Janata Party manifesto for the 2014 general election, the party pledged for integrating the state of Jammu and Kashmir into the Union of India.[22] After winning the elections, attempts were made by the party along with RSS party for abrogation of Article 370.[23] Also, Congress leader Karan Singh, son of Maharaja Hari Singh, has, opined that an integral review of Article 370 is overdue and, to be worked with the State of Jammu and Kashmir.[24]

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.[25][26]

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. ^ a b "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.
  3. ^ Menon 1956, pp. 317–320.
  4. ^ Noorani (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.
  5. ^ Noorani 2011, Introduction.
  6. ^ Article 370, granting special status to the state, is permanent: Jammu and Kashmir High Court, The Economic Times, 11 October 2015.
  7. ^ The importance of Article 370, The Hindu, 15 October 2015.
  8. ^ Amitabh Mattoo, Understanding Article 370, The Hindu, 29 May 2014.
  9. ^ [1] Archived 2013-01-05 at the Wayback Machine
  10. ^ "The Constitution of India (1949)" (PDF). Lok Sabha Secretariat. pp. 1122–1123. Retrieved 2 May 2014.
  11. ^ Noorani 2011, Section 11.1.
  12. ^ Noorani 2011, pp. 13–14.
  13. ^ "Central Enactments Applicable To State Of Jammu And Kashmir In Alphabetical Order" (PDF). 10 February 2009. Retrieved 23 November 2014.
  14. ^ "Order extraordinaire: J&K's immunity set aside by the NHRC". October 2010. Retrieved 23 November 2014.
  15. ^ a b Constitution of Jammu and Kashmir (PDF). Official website of Jammu and Kashmir Legislative Assembly on National Informatics Centre, India. Retrieved 3 April 2015.
  16. ^ Noorani 2011, pp. 1–2.
  17. ^ Noorani 2011, p. 1.
  18. ^ Noorani 2011, pp. 7–8.
  19. ^ "What is Article 370? Three key points". 28 May 2014. Retrieved 8 October 2014.
  20. ^ Rekha Chowdhary (23 April 2010). "Kashmir vs Women". Retrieved 2 December 2012.
  21. ^ 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. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help)
  22. ^ "BJP Manifesto for 2014 General Elections" (PDF). Retrieved 2015-09-17.
  23. ^ PTI May 29, 2014, 04.01AM IST (2014-05-29). "Omar Abdullah & Ram Madhav start war of words over Article 370 - Economic Times". Economictimes.indiatimes.com. Retrieved 2014-08-18.{{cite web}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
  24. ^ Integral review of Article 370 overdue, but needs cooperation not confrontation: Congress leader Karan Singh
  25. ^ Art 370 permanent…cannot be repealed or amended: HC, The Indian Express, 12 October 2015.
  26. ^ The importance of Article 370, The Hindu, 15 October 2015.
Sources
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