This article is written by Niharika Agrawal, from IFIM Law School. This article deals with the history of Article 370 and its actual status under the Constitution of India.
It has been published by Rachit Garg.
Table of Contents
Introduction
Article 370 of the Indian Constitution was a temporary provision that grants special status to the State of Jammu and Kashmir. This Article is temporary in the sense that the Constituent Assembly of Jammu and Kashmir had the right to modify, delete or retain it, and also it was considered to be temporary only till a plebiscite was held to ascertain the public wish. However, in recent times there has been a huge debate with respect to the temporary status of this Article. On many occasions, the Government and judiciary have claimed it to be permanent provisions. Thus the present article deals with the history of Article 370 and the actual status under the Constitution of India.
Both India and Pakistan claim full sovereignty over the Himalayan territory of Kashmir. Previously known as Jammu and Kashmir (J&K), the region became part of India in 1947, not long after the subcontinent was partitioned following the end of the British administration. A ceasefire line was agreed upon after India and Pakistan went to war over it and came to control separate portions of the area. The state of Jammu and Kashmir, which is controlled by India, has experienced violence for 30 years as a result of a separatist uprising against Indian rule.
Brief about Article 370 of Indian Constitution
The autonomy of the State is given by Article 370 of the Constitution. The temporary provision of this Article is derived from Part XXI of the Constitution under the title “Temporary, Transitional and Special provisions” which grants special status to the State of Jammu and Kashmir. This article was included in the Constitution on 17th October 1949 that exempted the State from the Indian Constitution except from Article 1 and Article 370 and allows the State to frame its own Constitution. It also restricts Parliament’s legislative powers in respect of Jammu and Kashmir. There were many Indian legislation and statutes that apply to the whole of India but are not applicable to the State of Jammu and Kashmir. This Article helped the State to have total control over 94 items out of 97 items of the Union List except in the matters related to defense, foreign affairs, finance, and communication. However, due to different sets of laws for the State, the Parliament needs to take State government approval for the implementation of any of the above 94 items. The citizens of the state had different laws and rules than the union relating to citizenship, ownership, and Fundamental Rights. Due to this, any Indian citizen who is not a permanent resident of the state could not buy the property in Jammu and Kashmir.
Jammu and Kashmir’s special status was effectively abolished in August 2019 when Article 370 was revoked, marking a turning point in the history of the area that was largely unopposed by the international community. Most nations, with the exception of China and Pakistan, were reluctant to overtly criticise India’s activities in Kashmir. In contrast to the constitutional changes themselves, the scant international response to India’s activities was mostly concentrated on the humanitarian situation in the valley. J&K was exempted from the application of the Indian Constitution (with the exception of Article 1 and Article 370 itself) and was allowed to create its own Constitution by virtue of Article 370. It limited the legislative authority of Parliament over J&K. The state government was only to be ‘consulted’ in order to extend a central law to topics covered by the Instrument of Accession (IoA). However, concurrence from the state government is required to expand it to additional issues. When British India was split into India and Pakistan by the Indian Independence Act of 1947, the IoA came into effect.
Salient features of Article 370 of Indian Constitution
- The State of Jammu and Kashmir has its own different flag and Constitution.
- The presidential rule cannot be imposed in the state, only the Governor’s rule can be proclaimed. The Government of India cannot declare a financial emergency under Article 360 in the state. Only a national emergency can be imposed in matters of external aggression or war.
- The state has its own Criminal code titled as Ranbir Penal Code.
- The citizens in the state have dual citizenship.
- The term of other Indian state Legislators is 5 years whereas, for Kashmir, it was 6 years.
History of Article 370 of Indian Constitution
After the independence of India in 1947, the former ruler Maharaja Hari Singh of Jammu and Kashmir declared to remain independent from India and Pakistan. However, after this proclamation, Pakistan launched a non-official war to free the region from Hindu rule where there is a majority of Muslim people. When Maharaja Hari Singh was unable to protect the state, he sought help from the Government of India. The Government of India was ready to help on the condition that Kashmir would accede to India. Hence both the parties signed the Instrument of Accession in Oct 1947. According to this accession treaty, this treaty could not be amended without the state’s consent and it also specifically protected the right to rectify the application of any further Constitution of India in its territory.
During the framing of the Constitution of India, certain important events along with signing the Instrument of Accessions such as the ruler’s proclamations issued in 1948 and 1949, the establishment of popular government in Jammu and Kashmir, presence of representatives of J&K in the Constituent Assembly of India and the debates relating to Article 370, occurred in the State of J&K.
The event of the ruler’s proclamation in March 1948 and November 1949, clearly examined the creation of a Constituent Assembly for J&K to enact its Constitution. These proclamations noted that the Constitution of India was likely to circulate and it would also apply to J&K temporarily so that India could govern its Constitutional relationship with the state of J&K. It was also further ordered that the Constitution framed for the State would supersede all the other provisions as and when it commenced. In this way, Article 370 was enforced from 26th January 1950 for temporary regulation of the constitutional relation between India and the State of Jammu and Kashmir. The feature of temporary character simply means that it will govern the relationship between Central and J&K till the Constituent Assembly of J&K enacts the Constitution of Jammu and Kashmir.
The Constitution of Jammu and Kashmir was adopted on 17th November 1956 and was in effect from 26th January 1957. It was the only state in the country to have its own Constitution and had special status compared to the other Indian States. However, Article 370 and its provisions continued to govern the relationship between the state and the center in the interregnum. It was also noted that the Constituent Assembly of J&K was not created under Article 370, it just recognizes the importance of the Constituent Assembly as a reflection of the will of the people of Kashmir and its special status.
The Indian Independence Act, 1947 gave 600 princely states, whose sovereignty had been restored at independence, three options:
- To remain independent,
- Join the Dominion of India,
- Or join the Dominion of Pakistan.
Joining either of these two nations required the execution of an IoA. A state that wanted to join might explain the conditions on which it consented to do so, even if there was no prescribed form. Pacta sunt servanda, which means that pledges made between states must be kept, is the adage that governs agreements between states. If there is a breach of an agreement, the parties must generally be put back in their original positions.
India’s declared position was that any disputes over accession should be resolved in accordance with popular will rather than by the princely state’s monarch acting alone. In India’s approval of the IoA, Lord Mountbatten remarked, “It is my Government’s aim that the subject of the State’s accession be determined by a reference to the people as soon as law and order have been restored in Kashmir and her soil is freed of the invader.” In its 1948 White Paper on J&K, the Indian government said that it saw admission as entirely transitory and provisional.
With the support of Vallabhbhai Patel and N Gopalaswami Ayyangar, Prime Minister Jawaharlal Nehru penned the following to J&K Prime Minister Sheikh Abdullah on May 17, 1949, “It has been settled policy of Government of India, which has been stated both by Sardar Patel and me on many occasions, that the Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly.”
How was Article 370 enacted
- The Government of J&K provided the initial draft for Article 370. Article 306A (later renamed as Article 370) was modified and negotiated before being approved by the Constituent Assembly on May 27, 1949.
- Even if accession was complete, India had offered to hold a plebiscite when the prerequisites were met, and if accession was not confirmed, “we shall not stand in the way of Kashmir divorcing herself from India,” was the belief according to the person who moved the resolution.
- Ayyangar reaffirmed India’s commitment to a referendum and the creation of a separate constitution by the Constituent Assembly of J&K on October 17, 1949, when Article 370 was eventually incorporated into the Indian Constitution by India’s Constituent Assembly.
Importance of Article 370 for the Indian Union
The Indian Constitution consists of only two such Articles that have provisions applicable in Jammu and Kashmir. Article 1 includes the State of Jammu and Kashmir in the list of states. Article 370 is one such tunnel that allows the Constitution to be applicable in the state. It is observed that India has used Article 370 at least 45 times to extend the provisions of the Constitution of India to Jammu and Kashmir. Article 370 is the only way through which, by just one Presidential order, India has almost nullified the effect of the state’s special status. After the enactment of Order in 1954, more of the entire Constitution and its provisions and amendments were applicable to the State of Jammu and Kashmir. 94 out of 97 matters of Union list were applicable in the state, 26 out of 27 items of the Concurrent List have been extended and 260 out of 395 Articles are extended to the state besides 7 out of 12 Schedules.
The Central government has used Article 370 in amending the provisions of the Constitution of Jammu and Kashmir even after the absence of such power to the President. Article 249 of the Constitution which provides power to the Parliament to frame laws on the State List entries, was applicable to the state just by the recommendations of the Governor and without any resolution by the Assembly.
Temporary character of Article 370 of Indian Constitution
Article 370 is a unique character. For any matter related to the application of central law in the State of Jammu and Kashmir on the subjects provided in the Instrument of Accession, mere consultation of the state government is required. However, in other matters, the concurrence of the State Government is mandatory. This gives rise to major differences as in the former one there is discussion at the beginning and in the latter case, direct acceptance from the other party that is the state government is compulsory.
Article 370 is an Article under Part XXI of the Constitution. This Article is temporary in the sense that the Constituent Assembly of Jammu and Kashmir have the right to modify, delete, and retain it. However, the Constituent Assembly of Jammu and Kashmir in its wisdom decided to retain it. Another reason behind its temporary character is the Instrument of Accession which was temporary in nature until a plebiscite was held to ascertain the public wish. There are certain opinions of the court regarding the temporary status of Article 370 of the Constitution.
In the case of Kumari Vijaylaxmi Jha v. Union of India, (2017) the Delhi High Court, rejected the petition stating that Article 370 was a temporary provision and the continuation of such provision is a fraud on the Constitution. The Supreme Court in the same case in April 2018 opined that despite the title ‘temporary’ under Part XXI of the Constitution, Article 370 is not a temporary provision.
The Constitution Bench of the Supreme Court also observed the case of Prem Nath Kaul v. State of Jammu and Kashmir (1959) and stated that the effect and application of Article 370 need to be judged on the basis of its object and its terms that are considered in the context of the special features of the constitutional relationship between the State and India. The main basis of the temporary provision under the Article is to determine the relationship between the state and the country by the Constituent Assembly of the state itself.
However another bench of the Apex Court, in the case of Sampat Prakash v. State of Jammu and Kashmir (1986), observed that Article 370 can be invoked even after the dissolution of Jammu and Kashmir’s Constituent Assembly. Further, the Supreme Court refused to consider Article 370 as a temporary provision. The five Judge Bench held that Article 370 has never been curbed to be operative and hence it’s permanent in nature. It further opined that if the Article is the permanent feature of our Constitution then it cannot be amended and also will be part of the basic structure. According to Article 368, the Parliament can amend any provision of the Constitution but such amendment should not destroy the Constitution and should also not alter any of its basic features.
There were many contradictory arguments relating to Article 370. It was argued that on one hand, the Article was temporary in nature and hence, is no more valid and required, while on the other hand, there was continuous justification regarding repeated use of Article 370 by the Government of India. The Supreme Court further clarified in the Sampat case that this provision with the example of Article 21. The Court interpreted that, ‘right to life’ under Article 21 of the Constitution means the right to live with human dignity. It also consists of the right to privacy under this article. Similarly, it was held that the term ‘temporary’ in the title of Part XXI does not mean to be temporary. It means any temporary provision may indeed be termed as ‘special’. And thus, the word “Special” was added in the title of the above part by the 13th amendment in the Constitution in 1962.
Sardar Vallabhai Patel has also declared Article 370 as a special provision for the State of Jammu and Kashmir keeping in view the existing relationship between the Center and the state. It was also observed that the actual temporary provisions in the Constitution are the reservation of Scheduled Tribes (ST), Schedule Cast (SC) in Parliament, and the state assemblies which were initially for just 10 years. English was also once considered as a temporary language for governmental work. Thus, Article 370 is a permanent provision under the Constitution of India.
Brief of revocation of Article 370 with an amendment to Article 367
On August 05, 2019, Article 370 ceased to be operative under the Constitution of India. The Government of India has revoked the special status of Jammu and Kashmir and took steps to change the regulation of the region.
Article 370 was the temporary provision under the Constitution. Article 370(1)(c) states that Article 1 and Article 370 is applicable to J&K and Article 370(1)(d) allows the applicability of the other provisions to the state as specified by the President’s order with the concurrence of the Constituent Assembly of J&K. Article 370 was able to be inoperative only if the Constituent Assembly of the state was able to recommend the same to the President and also Article 370 was the temporary provision only till Kashmir has its Constitution by the Constituent Assembly of Kashmir. However, the Constituent Assembly of Kashmir was dissolved in 1957 without making any recommendation for amendment or abrogation of Article 370. Due to this reason, the Indian Supreme Court in the above cases has ruled that Article 370 is a permanent provision of the Indian Constitution. Therefore, the Union Government came with a solution to overcome this problem. They have used the powers of the President under Article 370(1) in order to indirectly amend Article 370(3) via Article 367.
Article 367 is also an interpretation clause of the Constitution and added a new sub-clause 4(d). According to this amendment clause, “Constituent Assembly ” under Article 370(3) must be read as “Legislative Assembly of the State”. Due to this now the J&K Assembly was allowed to recommend abrogation of Article 370. But another problem that arose was that Jammu and Kashmir were also under Presidential Rule, therefore, Parliament had made the recommendation under newly modified Article 370 (3). According to this recommendation to the President to abrogate Article 370 was issued through the resolution by the Home Minister. This enabled the President to declare Article 370 has ceased to operate.
Hence, Article 370 is currently inoperative under the Constitution.
Conclusion
The state of Jammu and Kashmir is an integral part of India. The state has been given some autonomy under Article 370 in the view of federalism and its unique history of the state joining the Union of India. Article 370 is not the issue of integration but that of granting autonomy or federalism. After the judgment in 2018, the Apex Court held that Article 370 is a permanent provision since the Constituent Assembly of the State has ceased to exist. In order to overcome all the other legal challenges, the Indian Government rendered Article 370 as ‘inoperative’ and it still has its place under the Constitution of India.
References
- https://www.mondaq.com/india/constitutional-administrative-law/785148/all-about-article-370-jammu-kashmir-from-dawn-till-dusk
- https://www.thehindu.com/news/national/full-text-of-document-on-govts-rationale-behind-removal-of-special-status-to-jk/article28821368.ece
- https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/
- https://www.theindiaforum.in/article/article-370-federalism-and-basic-structure-constitution
- https://www.livelaw.in/columns/the-myth-and-reality-of-article-370-147415
- https://www.researchgate.net/publication/334131946_An_Insight_to_Article_35A_and_Article_370_of_the_Constitution_of_India
- https://www.thehindubusinessline.com/opinion/three-reasons-why-the-presidential-order-on-kashmir-is-not-kosher-yet/article28836245.ece.
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