1. Article 370 Introduction

The key feature of Article 370 was that the Central laws passed by the Parliament did not automatically apply to the erstwhile State of JK, and it was the right of the State Legislature to approve them by passing a parallel act.

Article 370 is a constitutional provision that gave Jammu and Kashmir its special status.

The provision was incorporated in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.

As evident from the title of the Part, it was supposed to be a temporary provision and its applicability was projected to last till the formulation and adoption of the States constitution.

It restricted the Parliaments legislative powers with respect to the state of JK.

Pandit Nehru, on the floor of Lok Sabha on 27th November 1963, said that Article 370 has been eroded and the process of gradual erosion is going on. A year later, the then Home Minister Gulzari Lal Nanda, again on the floor of Lok Sabha on 4 December 1964, said, Article 370 is a tunnel to take the Constitution of India to Jammu and Kashmir. He further said that in the end, only the shell will remain there and it will be bereft of its contents, and it will hardly make any difference whether it is kept or not.

These two statements by two tall leaders of the country speak volumes about the dilution of Article 370 of the Constitution of India just merely after one decade of its enactment. The process had right away started in the year 1950, with the issuance of the Constitutional Application Order 1950, and thereafter, a number of parlances took place between the Centre and the State leadership, which evolved into an agreement known as the Delhi Agreement of 1952, wherein a number of subjects apart from those in the Instrument of Accession were agreed to be made applicable to the State of JK. Some of them are as under:

Appointment of the head of State.

Persons having domicile in the State of JK shall be Citizens of India.

Fundamental Rights

Jurisdiction of Supreme Court

National Flag

Financial Integration

Emergency Powers

2. Presidential Orders

Under Article 370 of the Constitution of India, the President had the power of issuing orders for the application of provisions of the Constitution of India with modifications, exceptions and amendments in the provisions. And this power has been upheld In several cases by the Supreme Court, e.g., in P. L. Lakhanpal vs the State of JK.

As already said, for the application of other provisions of the Constitution of India to the State of JK, the only mode available was the Constitutional Application Order. And the same was to be done with the consultation and concurrence of the State Government. The Presidential Orders, broadly speaking, deal with the following subject matters:

Enhancing the jurisdiction of the Parliament to enact laws in the State of JK out of the Union List.

Laws relating to an increase or decrease in the area of the State.

Making provisions for the return of the permanent residents of the State who migrated to the territories included in Pakistan under permit for settlement.

Providing for constitutional protection to the laws relating to permanent residents of the state, their special rights and privileges, employment under Government, acquisition of immovable property, settlement in the State, scholarship.

Earmarking the number of seats in the House of the people, excluding the area under the occupation of Pakistan.

Provision for delimitation of Parliament Constituencies.

Transfer of judges from the High Court of JK or to the said Court.

Exclusion of the State List.

Provision as regards the decision affecting the disposition of the State of JK.

Acquisition and requisition of immovable property on behalf of and at the expense of the Union.

Provision relating to the use of the official language of the Union and in the proceedings before the Supreme Court.

Provisions for the proclamation of emergency.

Provisions for non-application of the amendments carried out by the Parliament of India in the Constitution of India.

Provision for Governor and the Election Commission.

In the year 1954, the Constitutional Application Order 1950 was renamed as the Constitutional Application Order 1954 and its issuance was the first infringement on the constitutional autonomy of the State of JK. It culminated with the issuance of the Constitution (Application to JK) Order, 2019. Article 370 itself was used to make it weak after remaining on the Constitution book for 70 years.

3.Facts on Article 370

Article 370 Temporary provisions with respect to the State of Jammu and Kashmir

1. Notwithstanding anything in this Constitution,

(a)The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b)The power of Parliament to make laws for the said State shall be limited to

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

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 purposes of this article, the Government of the State means the person for the time being recognized 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 Maharajas Proclamation dated the fifth day of March 1948 ;

(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 1 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 2 of sub clause (b) of clause (1) or in the second proviso 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.

4.Application of 370

However, the States constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of Article 370, leaving the status of the provision on a cliffhanger.

The provision was later held to have acquired permanent status by way of rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.

This implied that to apply a central law to the state on subjects included in the Instrument of Accession, mere consultation with the state government is required.

However, to apply a central legislation to matters other than defence, foreign affairs and communications, concurrence of the state government was mandatory.

5.Jammu and Kashmir Constitution

Article 3- Relationship of the State with the Union of India:- The State of Jammu and Kashmir is and shall be an integral part of the Union of India.

In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is a categorical acknowledgement about the object of the JK Constitution being to further define the existing relationship of the state with the Union of India as its integral part thereof.

6.Constitution (Application to Jammu and Kashmir) Order, 2019

(1)This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.

(2)It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time.

(3)All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:-

To article 367, there shall be added the following clause, namely:-

(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir-

(a) References to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;

(b) References to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;

(c)references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and

(d)In the proviso to clause (3) of Article 370 of this Constitution, the expression Constituent Assembly of the State referred to in clause (2) shall read Legislative Assembly of the State.

7.Has Article 370 been scrapped?

The Presidential order signed by the President of India has not scrapped Article 370.

But invoking this very article, the special status of Jammu Kashmir has been withdrawn.

Thus, Article 370 is very much on the statute book.

In other words, the move by the government gives full applicability of the Indian Constitution in Jammu and Kashmir. Earlier, only a set of limited provisions such as foreign relations, communication and defence had jurisdiction over Jammu and Kashmir.

8.What is the status of Article 35-A?

Since Presidential Order of August 5 has extended all the provisions of the Constitution to Kashmir, the Fundamental Rights chapter has now been extended and therefore some discriminatory provisions of Article 35-A may not be in accordance with prescribed Rules.

Therefore the President can also declare this to be inapplicable.

9. Conclusion

But unlike Dhaka and Beijing, Rawalpindi is not really prepared for a peaceful resolution. Repeated efforts by Indira Gandhi (1972), Atal Bihari Vajpayee (1999), and Manmohan Singh (2005-07) ended in failure. The inherent difficulty of negotiation has been compounded by Pakistans use of terrorism and Kashmirs ambiguous political status within the Indian Union.

In confronting Pakistans terrorism and reorganising the political status of Kashmir, the Modi government has set a new policy template.

The key to its success lies in finding early political reconciliation within Kashmir and persuading the Pakistan army that its interests are better served by stable, peaceful and legitimate frontier with India.

10.Criticisms

Due process

The process of revocation of Article 370, which ties the state with India, needed the approval of JKs Constituent Assembly. In the absence of such an assembly, it can be removed with the concurrence of the state legislative assembly. But the assembly does not exist at the moment either, and the notification suggests that it was the Governors concurrence that was obtained to render the provisions irrelevant. This is clearly not sufficient.

The process has been pushed through without consultations with Kashmirs political leaders, who have been under detention.

Further, the reorganisation of states requires the consent of the state assembly concerned.

In this case, JK has been bifurcated, and statehood diluted to UT status, without any deliberations in the assembly.

Citations:

1. Article 370 A constitutional History of JK available at : https://byjus.com/free-ias-prep/article-370/ (last visited on 16 Dec, 2023)