article 370

A Constitution is a set of fundamental principles that govern any state or organization. It is the grundnorm from which all the laws of the land gain their identity. Constitution of India is a written document that is the supreme law of the country. It describes the existing framework within the country defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out fundamental rights, directive principles and the duties of citizens.

Every article of the constitution has its own history and importance. But the kind of attention that Article 370 has gained seems to be unprecedented. The controversy that has been hitched on with this particular article craves for attention.

Article 370: History

At the time when the proposal for partition of India was to be laid down, many princely states were given “freedom of choice” to merge either with the dominion of India or with the dominion of Pakistan or remain independent.

In May 1949, the rulers and chief ministers of all the states agreed to accept the Constitution of India as their own constitution. The position of all the states thus became equivalent to that of regular Indian provinces.

In the case of Jammu and Kashmir(the state) things were not the same. Hari Singh, the Maharaja of the State expressed his desire to stay independent and also signed a Standstill Agreement with the Dominion of Pakistan, but soon Pakistan started invading the territory of Jammu and Kashmir and then for the security of his empire, the Maharaja requested the Dominion of India for his help. But since they were not a part of Indian Territory, help was refused. Because of the dire need of the help, as the Pakistani invaders had almost successfully captured Srinagar, on October 26, 1947 Hari Singh signed the Instrument of Accession of Kashmir to the dominion of India.

If we go by the Instrument of Accession, it was partly provisional and gave only limited powers to the dominion of India. Under this instrument, he surrendered the jurisdiction of three subjects- defence, external affairs and communication to the Central Government.  Also the Maharaja was not ready to accept the future Constitution of India and compromise with the sovereignty of the state.

Meanwhile, on January 1, 1948, the issue of Kashmir was taken to United Nation (“UN”) by the then Prime Minister Jawaharlal Nehru and Plebiscite was offered as a solution in the state, although that could never happen due to the misunderstandings on the terms of the resolution passed by the UN between India and Pakistan.

Sheikh Abdullah, who by then was made the Prime Minister of the state, wanted the state to have the maximum possible autonomy and a special status to be given to the state as per clause 7 of the Instrument of Accession. This resulted in the inclusion of Article 306A in the draft constitution which is enshrined as Article 370 corresponding to the Instrument of Accession. Thus, Article 370 was labeled as a ‘temporary’ provision in order to keep the doors open for the day when the state would merge with India and fully accept the Constitution of India.

It stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to the state only with the concurrence of the State’s Constituent Assembly, to exist till the time the Constituent Assembly of the state passes its own Constitution, thus made temporary.

The President and the Constituent Assembly of the state were empowered to order that the operation of the provisions of Article 370 would cease, or continue with such amendments and exceptions as they would specify. They were subject to the limitations which one placed on the other.

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 been deemed to become a permanent feature of the Indian constitution, as confirmed by judgment of the High Court of Jammu and Kashmir[2] and refusal by the Supreme Court to entertain PIL that challenged the autonomous status given to the state.

It has been held that the article cannot be abrogated as the provision available in the clause 3 of the article 370 is no longer available due the non-existence of the Constituent Assembly.

Provisions of Constitution of India and other laws, which are applicable to the state

Even though the state is a constituent part of the Union of India under Schedule 1 of the Constitution of India, it has been exempted from many provisions of the Constitution and is even allowed to have a separate constitution and its own flag.

Due to the existence of Article 370, the Union Laws, except those relating to defence, external affairs and communications, are not applicable to the state without the permission of the government of the state. Consequently, the state has its own laws including those governing citizenship, ownership of property and fundamental rights. However, there are a number of provisions of the Constitution of India that have been extended to the state by various Presidential Orders.

Important amongst these are Article 356, which deals with the imposition of President’s rule in a state and the jurisdictions of the Supreme Court, the Election Commission, and the Comptroller and Auditor General. Still there exists a vast area that remains under the exclusive jurisdiction of the state government. The Indian Penal Code, 1860, the Prevention of Corruption Act, 1988, the Religious Institutions (Prevention of Misuse) Act, 1988, and the Delhi Special Police Establishment Act, 1946 are some crucial Union laws that are not at all applicable to the state. The Protection of Human Rights Act, 1993, the Commissions of Inquiry Act, 1952, the Unlawful Activities (Prevention) Act, 1967, and the Representation of the People Act, 1951 are only partly applicable.

In exercise of the powers conferred by Article 370(1) of the Constitution, the President with the concurrence of the State Government has made the ‘Constitution (Applicability to Jammu and Kashmir) Order 1954. As per section 2(22)(c) of this Order, entries 10 and 28 of the Concurrent List are not applicable to the state. Provisions of Article 248 and entry 97 of the Union list which deals with the residuary powerof the Parliament, have been substituted for the state vide sections 2(6)(b) and 2(22)(a)(iv) of the Constitution Order 1954. It means the provisions of Article 248 and entry 97 of the Union List, as applicable to the rest of the India, are not applicable to the state. Therefore, the law made by Parliament under its residuary powers, are not applicable to the state.

Part VI in whole is not applicable to the state. Moreover, the Jurisdiction of the Parliament of India in relation to the state is confined to the matters enumerated in the Union List, and also the concurrent list. There is no State list for the State. At the same time, while in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of the state, the residuary powers belong to the Legislature of the State, except certain matters to which Parliament has exclusive powers such as preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of India. Power to formulate laws related to preventive detention in Jammu and Kashmir belongs to the Legislature of the state and not the Indian Parliament. Thus, no preventive detention law made in India extends to the state. Even the plenary power of parliament with respect to alteration of the name or territories of the State (Article 3) does not extend to the state. Similarly, International treaty or agreement affecting any part of the territory of the state (Article 253) does not extend to the state. Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. Any action of the Union Legislature or Union Executive which results in alteration of the name or territories or an international treaty or agreement affecting the disposition of any part of the territory of the state requires the consent of the State Legislature.

Initially, Article 356 and 357 did not apply to the state. However, these two articles related to suspension of the Constitutional machinery in the state have been extended to the state by the Amendment Order of 1964. However, Failure means failure of the constitution machinery as set up by the Constitution of the State and not the provisions in part VI of the Constitution of the India. As a result, where the failure of the Constitutional machinery takes place in the state, two types of Proclamation may be made, the President’s Rule under Art. 356 of the Indian Constitution (as in the case of the other States of the Indian Union); the Governor’s Rule under section 92 of the Constitution of J&K for which there is no counterpart in any other State of India. The Union of India has no power to declare Financial Emergency under Article 360 in the state. It is pertinent to note that the Fundamental Rights guaranteed under the Indian Constitution, enjoyed by all states of India, some special right as regards employment, acquisition of property and settlement have been conferred on permanent resident of the State by constitution of the state. Right to property is still a fundamental right in the state. The provisions of article 368 of the Constitution of India are not applicable for the amendment of the State Constitution of the state. The state assembly by two third majorities amends its own constitution (except in those matters that are related to relationship of the State with the Union of India). The Union has no power to suspend the Constitution of the state. Further, the High Court of Jammu and Kashmir has limited powers as compared to other High Courts within India. It cannot declare any law unconstitutional. It cannot issue writs except for enforcement of Fundamental Rights under Article 226 of the Constitution.

With course of time, the Indian Government has exceeded its limits. A series of Presidential Orders has gradually eroded the article 370. The only thing that has remained intact is the law relating to the permanent residents and their rights; non-applicability of the Emergency provisions on the grounds of ‘Internal disturbance’ without the concurrence of the state; the name and boundaries of the state which cannot be altered without the consent of the state’s legislature.

In 1952, an agreement was signed between the state government and the Union of India. This agreement brought all issues mentioned in the Union List, not only three issues of Defence, Foreign Affairs and Communication, under the jurisdiction of the Union Government, pending the decision of the Constituent Assembly of Jammu and Kashmir. The President in consultation with the state government made the Constitution (Application to Jammu and Kashmir) Order, 1954.This Order implemented the agree­ment of 1952 signed between the state government and the Union government and was ratified by the Con­stituent Assembly. This Order also superseded the earlier Order of 1950.

Though it is true that there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I but the autonomy that has been given to J&K under article 370 is one of its kinds.

Effect of article 370 on the Citizens of India and their rights

Ironically, special status given to Jammu and Kashmir has built an emotional and psychological barrier between the people of Kashmir and the rest of India, thus fostering an attitude of separatism. It has kept alive the two-nation theory. Over a period of time, the separatist lobby in the state has used this barrier to build a mindset of alienation. Article 370 has also supported power elites and local Sultans, who wield enormous power, which they use to trample upon the demands of common people for public welfare.

Besides this, people feel discriminated, when it comes to Jammu and Kashmir. The Constitution under Article 19(1)(d) and (e) guarantees every citizen right to move freely and settle in any part of the Country. But this right is obstructed when it comes to the state, article 370 being standing there on their way. Various laws prescribed by the State legislation of the state encourage this separatism and non-belongingness among the people of Kashmir. There is only one system of citizenship for the people of the country but in case of the state, it is dual citizenship, one of the state and the other of India. The citizens of the state are citizens of India but the citizens of the rest of India cannot be citizens of the state. They do not have the right to property and the rights to vote in the state; laws which relate to ownership of property in the state make the citizenship of 10 years as a condition precedent for buying land in the state.

Moreover, some laws are unreasonable, illogical and hare-brained. It is noteworthy that women in Kashmir have also been a victim of various discriminating legislation passed by the state assembly under the embargo of article 370 of the Indian Constitution. For instance, through 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. In 2004, the Jammu and Kashmir high court, in the case of State of J&K vs Sheela Sawhney[3], declared that there was no provision in the existing law dealing with the status of a female PR who married a non-resident. The provision of women losing their PR status after marrying outside the state, therefore, did not have any legal basis. This decision was historic because it corrected an administrative anomaly and brought relief to women who married outside the state. 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’. Omar Abdullah’s party, the National Conference, backed this Bill and got it passed in the assembly. But it did not ultimately see the light of day for various reasons.[4] The Bill was passed in the Lower House with a voice vote and was headed to become a law with its passage in the Upper House when it attracted controversy and didn’t go through the Upper House. Since then, there has been another attempt to pass the Bill in 2010 but in vain. Regardless, the J&K High Court’s order of 2004 that allows women from J&K to retain their permanent resident status, even after they marry non-state subjects stands. In 2002, the J&K High court has ruled that daughters of the state would continue to be permanent residents even after marrying people from outside the state (sons always had this right). Even the wealth tax cannot be imposed in the State. The Urban Land Act, 1976, which is in force in the entire country, is not applicable to Jammu and Kashmir. The result of it is that rich landlords, belonging to the majority community in the Valley, indulge in economic exploitation of the poor and the Indian citizens, who are non-State subjects and live in the valley as they cannot even secure loans from the financial institutions. This is the main reason behind the lack of economic, industrial and infrastructural development there. The ever increasing unemployment is one of the consequences of the lack of development. The law acts as an impediment to Kashmir’s economic and social integration not only with the rest of India, but the world.

Has the purpose been achieved? Or should it still be kept?

It is a well-established principle that whenever any law has served its purpose it should either be repealed or amended to meet the changing needs of the times. The article was introduced at the time when there was political turmoil in the state and the United Nations resolution was calling for a plebiscite in the state on the issue of accession to India; the governments of both India and Pakistan trying to establish political control over the territories of Kashmir, and the representatives of all the other states choosing, in India’s Constituent Assembly, to not assert their right to separate constitutions. It was introduced as a temporary provision in the Indian Constitution to safeguard the rights of the locals of the state and was accordingly meant to be repealed as and when people of the state decide to completely be part of India. However, it has been 69 years since India got its Independence and the issue of Article 370 still remains a sensitive and subjective one. At the time of framing of Article 370, there was hope that the state would one day integrate with the Union of India like other States, but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement. Thus, article 370 is an anachronistic decree that has outlived its utility, militates against India’s sovereignty, and discriminates against both Indians and Kashmiri’s by mutually excluding each other from syncretic growth. It is thus redundant, can be debated and constitutionally discarded.

Should it be abrogated?

The last and important question and present matter of debate, can Article 370 be abrogated? On this Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Nonetheless, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended. J&K Constitution was framed under the authority of the Article 370 and Instrument of Accession. If the Article 370 goes then the effect of section 3 of J&K Constitution under which J&K is part of India will also go. Now suppose this argument is countered by Union of India saying even if there is no section 3 of J&K constitution, the State is still part of India because of the Instrument of Accession. But in that case Union of India will face serious problems because governor general of India Lord Mountbatten while accepting Instrument of Accession pledged as soon as the situation after the raid from the Pakistan side (in 1947) becomes normal, people have the right to express their wishes, whether or not to accept the accession and in that case J&K people will have legitimate right for plebiscite.

Thus, Article 370 is more likely a contract having perpetual succession between union of India and the state. The amending provision of constitution of India under article 368, therefore, has no significance regarding Article 370. Any attempt to amend or abrogate Article 370 will prejudice the very nature of accession of Jammu and Kashmir to India and the state will have absolute authority to decide the fate regarding whether they have to continue accession with union of India or claim for independent state.  

However, the article is believed to be no longer of any use. It was added to provide the state with an assurance that they would be taken care of after joining India and for the securitization of Kashmir from the unlawful intervention of Pakistan and was supposed to be a temporary provision. Now this securitization demands the abrogation of Article 370.  The kind of terrorist activities that are ongoing in that part of the country demands its complete take over by the Indian Government and design a peaceful arrangement with the people of Jammu and Kashmir.

Although a few other states have certain special provisions, but this sort of unreasonable autonomy and privileges are enjoyed by no other state. The need of the hour is to integrate the entire country and incite feeling of Nationalism among the locals of the state, be it for the purpose of standing against terrorism or achieving overall national development.

It is noteworthy that the state in the recent years has accepted most of the laws of India as they are and others are enacted there with little change.

Madhu Kishwar[5] arguing against Abrogation of Article 370, remarked that Kashmir’s integration with India would create Constitutional Crisis. Jammu and Kashmir’s Constituent Assembly did not abrogate it before it dissolved itself, so it cannot now be abrogated. Also abrogation appears to be needless. Most of the laws passed by Parliament have already been applied to the state, as has already been stated, and thus article 370 has been eroded beyond recognition. Article 256, 356 etc. are now applicable to state of J&K as well.

Manish Tewari[6], clarifies that J&K signed a StandStill Agreement with dominion of India and dominion of Pakistan and due to its violation by Pakistan, Raja Hari Singh of J&K signed Instrument of Accession with India over defence, communication and external affairs. J&K’s Constituent Assembly affirmed the article which was later re-affirmed through Kashmir Accord on November 13, 1994. So, if article 370 is abrogated the relation of India and the state would revert to the terms of Instrument of Accession and Government of India would be only able to make laws regarding the three matters mentioned therein.

Can it be amended?

The arguments in favour of and against the abrogation of article 370 are equally valid. Those who argue for abrogation of the article say that it has created certain psychological barriers and is a root cause of all the problems. Moreover, Article 370 encourages secessionist activities in the country. It is also argued that at the time of enactment, it was a temporary arrangement which was supposed to erode gradually. This article is a constant reminder that Jammu and Kashmir is still to merge fully with India. Those who argue against the article 370 say that the abrogation will cause serious consequences. They ask why there are separatist activities in other states which have not such special treatment by constitution. According to them, abrogation of this article would also violate the solemn undertaking by India given to state through the instrument of accession.

There are different opinions on the issue whether Article 370 can be legally amended or not. According to First View[7], the answer is no. Article 368, which contains the provisions governing the amendment of the Constitution, applies to all the other states of India except Kashmir. In relation to Kashmir, a proviso has been added to Article 368 by the Constitution (Application to Jammu and Kashmir) Order, 1954, which says that no constitutional amendment “shall have effect in relation to the State of Jammu and Kashmir” unless applied by an order of the President of India, under Article 370. Clause 3 of Article 370 states that the President can issue a notification to cease the operation of Article 370 or to restrict it operation only on the recommendation of the Constituent Assembly of the state. And since the Constituent Assembly is no longer in existence the clause 3, it becomes an improbable condition and can never be effectuated. It has become the Basic Feature of the Constitution and doesn’t allow Parliament to tinker with it and affect the kind of relations India has with the state.

A solution that has been suggested to this obstacle is an amendment of the Constitution of India to remove the requirement that the recommendation of the Constituent Assembly is necessary to remove the Article. But even such an amendment under Article 368 requires issuance of a Presidential order under Article 370, which in turn will require the state government’s concurrence by the President under Clause (1)(d) of the current provision.

The other view[8] is in the favour of the motion. According to Dr. Swamy, article 368 was not a condition to Jammu and Kashmir’s merger with India. Instrument of Accession had no clause like article 370. Article 1 applies to the state making it part of Union of India and by no legal way can any part of India be ceded. Article 370 is an exception to Article 368 and it doesn’t require a vote of Parliament to amend the article, a Presidential order along with the Cabinet’s approval would suffice. And even if it cannot be done legally, it can be occupied like many princely states as was done in case of Hyderabad, Mysore.

What would be the consequences of repeal?

The issue of Jammu and Kashmir is the most heated one, the one that has always brought hate and bloodshed home. India has always tried to bring back the peace, and the consequences of tinkering with the article might push the situation back to the track of trouble between the valley and the center. The existence of the article doesn’t even bother the rest of the country, while it has so much of importance of the Kashmiris. Evidently, article 370 has majorly been eroded and what has remained is superficial, but an attempt to puddle with it would just cause more trouble.To get along with the state and to integrate it the country’s progress there are many other peaceful ways.

Given that Article 370 represents Jammu and Kashmir’s “unique relationship” with India, a probable consequence of its repeal would be the undermining of the position of the state in relation to India. A.G. Noorani has argued that Article 1, which lists the territories of India, is applicable in relation to the state of Jammu and Kashmir only through Article 370 and that, therefore, the extinction of Article 370 would mean the exclusion of Jammu and Kashmir from the constitutionally listed territories of the Union of India. If, as he says, the application of Article 1 to Jammu and Kashmir is subservient to Article 370, the abrogation of Article 370 would sever the constitutional link between India and Jammu and Kashmir and the Indian constitution will automatically cease to be applicable to Jammu and Kashmir. As the former Chief Justice of the Jammu and Kashmir High Court, BA Khan argued in 2015, “If Article 370 is abrogated, then technically and legally, the foundation of Jammu and Kashmir’s accession to India would cease to exist.”

Although that would also ensure many benefits but a cost and benefit analysis of tampering with the provisions favor not meddling with them.
The Union government has other ways to integrate the state with rest of India. This would involve removing many of the war-like provisions, improving road & rail connectivity, surcharging the local economy, organizing various cultural exhibitions and educating the masses about One Nation theory.

From the above discussion, what can be analyzed is that the issue of abrogation of article 370 of the Indian Constitution is very tactful and fragile. As the phrase goes “justice for one can be injustice for the other”.  Therefore, a complete abrogation might be the need of the hour but for the purpose of integrating the entire nation it can not be considered as an optimal solution. As it was originally temporarily introduced with some vision, without actualizing it, completely abrogating the said article might incite the feeling of hatred among the locals of Jammu and Kashmir and political leaders might use this as an opportunity to establish their autonomy in the valley worsening the situation. Moreover, the kind of hatred that perpetrates in the state in present times doesn’t demand an immediate abrogation. There are many other ways to unite which are more peaceful and can be achieved by the active participation of the locals of the state such as sensitizing the masses about various cultures of the India and idea of developing as one nation and developing feeling of Nationalism. Thus, A little amendment in the basic laws that make the state stand against other states instead of repeal might help to achieve the above agenda and maintain peace in God’s own place Jammu and Kashmir.

 

 

[2] Only Parliament decide scrapping of Article 370: Supreme Court, The Indian Express, December 25, 2015

[3] AIR 2003 J K 83

[4] Rekha Chowdhary (23 April 2010). "Kashmir vs Women".

[5] Indian Academic and writer, ‘Indian Union Debate 2015- Should Article 370 be abolished?

[6] Indian politician, ‘Indian Union Debate 2015- Should Article 370 be abolished?’

[7]  Ram Jethmalani, eminent law professor and lawyer; Madhu Kishwar, Indian Academic and writer; Manish Tewari, Indian politician at ‘Indian Union Debate 2015- Should Article 370 be abolished?’)

[8] Dr. Subramaniam Swamy, Indian politician and economist; Siddhartha Thyagarajan, Policy Advisor at Confederation of British Industry; Abhishek Sankritik, Symbiosis Law School, Pune) at ‘Indian Union Debate 2015- Should Article 370 be abolished?’

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