Article 370

Introduction

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: Temporary, Transitional and Special Provisions. 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 was deemed to have become a permanent feature of the Indian Constitution.

What is Article 370?

Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir.

• Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special Provisions”, the state of Jammu & Kashmir has been accorded special status under Article 370.
• All the provisions of the Constitution which are applicable to other states are not applicable to J&K.

Important provisions of the article:

• According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.
• Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
• Under Article 370, the Centre has no power to declare a financial emergency under Article 360 in the state. It can declare an emergency in the state only in case of war or external aggression. The Union government can therefore not declare an emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
• Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.
• The constitutional amendment becomes applicable to Jammu & Kashmir only after the president issues an order.

Historical background

A whole state of Jammu and Kashmir enjoys the special status among the states in India under Article 370 of the Constitution. This state enjoys special position because of the special circumstances under which it was brought under the governance of the Union of India. Like many rulers, Maharaja Hari Singh joined Dominion of India by signing the Instrument of Accession on October 26, 1947.

India agreed to accept the accession of Jammu and Kashmir on request of Maharaja, who had found it necessary following the attack of the Azad Kashmir forces in the wake of the formation of Pakistan.

Accordingly, the subjects of Defence, External Affairs and Communication in respect of Jammu and Kashmir like other states which joined India as per the Instrument came under the jurisdiction of Dominion of India.

Note
Lord Mountbatten, presumably with the knowledge and consent of Pandit Nehru, unwisely insisted that the final decision of the accession would be ratified by the constituent assembly of Jammu & Kashmir. The blunder was committed by Nehru to follow Lord Mountbatten blindly. When neither Maharaja Hari Singh nor Sheikh Abdullah demanded the ratification of the instrument of accession by the constituent assembly of Jammu & Kashmir, it was wrong on part of the government of India to insist on the ratification. It was a Himalayan blunder committed by Nehru.

Article 370 Regarding Jammu And Kashmir people:

• No law passed by the Parliament regarding the state of Jammu and Kashmir can be applied to the state without the Order of President of India in concurrence of the State government.
• No such conditions exist in the case of other states.
• Article 370 was and is about providing space & empowering people, in matters of governance, when they felt deeply insecure & vulnerable about their identity & future.

Criticism

• Provisions of article 370 were temporary in nature. Then why it is still continuing?
• One important thing to note here is that Constitution makers had made this provision & had intended that it would end eventually only when there will be real peace in this area which is still a distant dream.
• While most of the Kashmiri people regard it as “a bridge between the state and the rest of the country”.

The call for an Abolition of this article has raised apprehensions of the minorities, and this also tends to sow the seeds of discord.

What is Centre’s view in this regard?

The Centre has asked the Supreme Court to debate on the special status granted to the State of Jammu and Kashmir, saying it was both a sensitive and constitutional matter.

PIL Filed

A PIL was filed in SC contending that the J&K government, given the State’s special autonomous status under Articles 35A and 370, was discriminatory against non-residents as far as government jobs and real estate purchases were concerned.

What is J&K government view?

The State government argued that its special status was sourced from the 1954 Presidential Order, which gave special rights to the State’s permanent residents.

What is J&K High court view?
Its remarks that article 370 is beyond amendment or repeal or abrogation flows from an analysis of the question whether the section had become incorporative after the state constituent assembly framed its constitution, and the assembly itself ceased to exist.
“It cannot be abrogated, repealed or even amended as the mechanism (by the recommendation of state constitution assembly) provided under clause (3) of article 370 is no more available”.
It said that the constituent assembly of 1957 was empowered to recommend to the president that 370 be declared to cease to operative or operate only with the exceptions and modifications, but it did not make such a recommendation before its dissolution on January 25, 1957. It had added articles 370 embodied “conceptual framework of relationship” between the Union of India and Jammu & Kashmir.

It impliedly rules that the president’s power to issue orders, as has been done over the years making several laws and provisions of the constitution applicable to Jammu & Kashmir remains untrammelled. By reiterating the core requirement that even provisions affording constitutional protection require the use of article 370 and orders issued under its imprimatur, the court has reaffirmed that importance of the article and showed how abrogating it will weaken the getting special status.
In the year 2015, Jammu & Kashmir High Court observed that article 370 is a permanent provision of the Constitution, the court observed in its judgement on a case challenging the reservation benefits in promotions to the employees. Nothing that article 35A protected the existing laws of the state; the High Court said that Jammu and Kashmir had retained limited sovereignty while acceding to the dominion of India like the other princely states that signed the Instrument of Accession

• Note: Some may find the observations that article 370 are beyond the repeal or abrogation debatable. Parliament’s amending power under article 368 remains available for such measure, but it is far wiser for any dispensation to wait for a resolution of the dispute with Pakistan over the entirety of Kashmir’s territory before revisiting the state’s constitutional status. Any premature action on this front may be a needless misadventure.

Supreme Court on Article 370

Supreme Court in December 2015 said that only parliament can take a call on scrapping article 370 that accords special autonomous status to Jammu and Kashmir.

PIL petitioner BP Yadav, a lawyer based in Andhra Pradesh, argued that the issue required interference by the Supreme Court but the bench turned down his plea. “We can strike down a provision if it is unconstitutional but we cannot be asking parliamentary to remove a provision. It has to be done by Parliament”.

Conclusion

The abrogation of article 370 of the constitution that would terminate Kashmir’s special status compared to other states in its 1st schedule of our constitution. This demand for repeal of article 370 has been repeatedly voiced by the BJP.

The Kashmir committee has explained that this demand must be abandoned as it serves no significant Indian interest, and cause unnecessary suspicion to many in Kashmir. Besides, it is not an unreasonable price to pay for eliminating the influence of secessionists and liquidating their plans. But most importantly, it is this article that gives a constitutional finality to the entire region of Jammu and Kashmir being an integral part of India.

Note

• Let me also clearly state that the repeal of article 370 is not possible by any constitutional method. It can only be done by a constitutional coup, which even our supreme court will declare ultra vires and void.
• Article 370 provides for its own repeal not by legislation by Parliament of India, but by presidential action under clause 3 of the article, which reads under: “(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notifications, 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.”
• No such recommendation has been obtained and none is feasible now or in the foreseeable future.
• The article is the result of freely negotiated contract between the people and constitutional authority of India. It is thus a basic feature of the constitutional scheme that has evolved for the future governance of the state, and is beyond any power of modification or repeal within the Kesava Nanda Bharati doctrine evolved by our own supreme court, that anything which is conflicts with seeks to alter this basic structure of the Constitution, is ultra vires. The amending power under article 368 cannot reach it.
• We cannot compel our president to exercise a power which does not rest in him. We will only earn the bad reputation of being constitutional terrorists without any significant gain. Even on the express words of the proviso to clause 3 quoted above, such a power is completely negative.