Article 370 of the Indian Constitution deals with the special status given to the state of Jammu & Kashmir. It provides a fairly high degree of autonomy to the state, enables the state to have its own constitution (unique in an Indian Context) which permits the state to give some special privileges to its “permanent residents”. One such special privilege is that only a permanent resident can buy land in the state and citizens from other Indian states face some restrictions.
The article was enacted with much displeasure to India’s founding father such as Sardar Patel and Baba Saheb Ambedkar. It is a very controversial topic as the region is an international hotspot and the state is the only Muslim-majority state in India. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and special Provisions.
~HISTORICAL BACKGROUND~
In 1947, as the British were leaving India they gave the various Indian princes the right to choose their destiny. This would have led to 100+ nations in the subcontinent. India had an iron man (Sardar Patel) who wouldn’t let this happen and deftly arm-twisted hundreds of these kings & princes into forming the Union of India.However, there was one sticking point – Kashmir.
However, there was one sticking point – Kashmir. The Maharajah of this region wanted to stay alone, completely ignorant of the geopolitics around him. Pakistan forcefully tried to take control of his independent nation and without any option left maharajah chose to join India in October 1947. A legal document executed by Maharajah Hari Singh, ruler of the princely state of Jammu & Kashmir, on 26 October 1947. By executing this document under the provisions of the Indian Independence Act 1947, Maharaja Hari Singh agreed to accede to the Dominion of India. After joining India, the Maharajah appointed Sheikh Abdullah as the Prime Minister of Kashmir.
Constituent Assembly when it came to drafting the Indian constitution, Nehru brought in N. Gopalaswami Ayyangar to draw the relevant clauses and articles. Ayyangar argued that Kashmir was not fully integrated, a third of the state was still in occupation of Pakistan and the matter was with UN Security Council. Thus, he said there must be special provisions for Kashmir as a stopgap until the state is ready for full integration.
~PURPOSE~
The state of Jammu & 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, SURASHTRA 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 constitution for the states was 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.
In the case of Jammu & Kashmir, the representatives to the Constituent Assembly 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 & 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. The State’s Constituent Assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus the Article 370 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.
~TEXT~
- Temporary provisions with respect to the State of Jammu and Kashmir
- Notwithstanding anything contained in this Constitution,-
- the provision of Article 238 shall not apply now in relation to the state of Jammu and Kashmir
- 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 the State;
- such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
- Notwithstanding anything contained in this Constitution,-
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 the Jammu and Kashmir, acting on the advice of the Council of Ministers of the state for the time being in office.
- the provisions of article 1 and of this article shall apply in relation to that State
- 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.
- 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.
- Notwithstanding anything in the foregoing provisions of the article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with exception and modification and from such date as he may specify.
~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 right to draft its own Constitution and to decide for itself what addition powers to extend to the Central Government. The Article 370 was designed to protect those rights. According to the Constitutional scholar A.G. Noorani, the Article 370 records a ‘solemn compact’. Neither India nor State can unilaterally amend or abrogate the Article except in accordance with the terms of the Article.
Article 370 embodied six special provisions for Jammu and Kashmir;
- It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
- Central legislative powers over the State were limited, at the time of the framing, to the three subjects Of defense, foreign affairs, and communications.
- Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
- The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
- 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.
- 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 afterward. In subsequent years, other provisions continued to be extended to the State with the ‘concurrence’ of the State Government.
~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. In addition, 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.
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 “recognized 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.
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.
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 Swaran Singh, who was already acting as the Prince Regent, as the new Sadar-i-Riyasat.
Presidential order of 1954
The Presidential order of 1854, 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. Arguably, it went further than the Delhi Agreement in some respects.
The provisions implementing the Delhi Agreement were:
- Indian citizenship was extended to the ‘permanent residents’ of Jammu and Kashmir (formerly called ‘state subjects’). Simultaneously, theArticle 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.
- 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.
- The jurisdiction of the Supreme Court of India was extended to the State.
- The Central Government was given the power to declare the 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:
- 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.
- 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. 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.
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. 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.
The Presidential order of 1954 was issued based on these recommendations.
~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. 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. All these orders have been issued as amendments to the Presidential Order of 1954, rather than as replacements for it, presumably because their constitutionality was in doubt.
This process has been termed the 'erosion' of the Article 370.
~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.
- 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.
SOURCE:
http://www.constitution.org/cons/india/p21370.html
http://www.legalserviceindia.com/article/l248-Article-370.html
https://en.wikipedia.org/wiki/Article_370
http://www.thehindu.com/opinion/lead/Understanding-Article-370/article11640894.ece
http://www.indiandefencereview.com/news/article-370-the-untold-story/
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