Article 370 of Indian Constitution

Table of Contents

Article 370 – This article discusses the Article 370 of Indian Constitution and recent abrogation of Article 370 and its effects . This article is written by Pranay Kumar, a law student from Symbiosis Law School, Pune.

Abstract:

The Indian Constitution is the supreme law of the country. It was made through adaptation from various other constitutions of various other countries in the world. It is the longest written constitution in the world. There are 448 articles in the Constitution of India. But the one we are concerned with in this paper is Article 370 which awarded autonomous status to the state of Jammu and Kashmir. This particular article along with Article 35A has been abrogated by our central government in the monsoon session of the parliament. The purpose of this paper is to properly explain what this article actually meant for the people of India and particularly the people of Jammu and Kashmir. This paper also deals with the current abrogation of the article and the opinions stated by the both the sets of the people; one who supports the decision and the other who opposes it. The author has also expressed his personal opinion concerning what he feels is right and is wrong in this whole act of the government.

Introduction:

While the Britishers were ruling India, in the 20th century before independence, India was divided into two unequal parts:
1. British India
2. Indian India

British India consisted of 2/3rd of the total land and population, while 1/3rd of the total land and population was with the Indian India. The British India was further divided into 12 provinces while the Indian India was divided into 552 princely states. After 15th August, 1947; there remained a large amount to princely Indian states which were autonomous, and it was up to them to decide what they wanted to do; either to aced to India or Pakistan or just remain an independent territory. Most of the important states ceded to the dominion of India other than Hyderabad, Kashmir and Junagarh. Junagarh, who was ruled by a Muslim King, Muhammad Mahabat Khanji III, decided that Junagadh should become part of Pakistan, much to the displeasure of many of the people the state, an amazing majority of them were Hindus.

The Nawab acceded to the Dominion of Pakistan on 15th September, against the advice of Lord Mountbatten, arguing that Junagadh joined Pakistan by sea. But on February 24th, 1948 the State Of Junagadh Voted to join India and not Pakistan. While Hyderabad was invaded by Indian troops in September 1948 and then the Nizam was compelled to sign the instrument of accession which led them to join India. On the other hand, Jammu and Kashmir has a different story altogether.

Back in 1947, as mentioned earlier all princely states were given the option after the independence of India to either join the dominion of India or the dominion of Pakistan or just remain an independent territory. If they agreed to join the territory of India, then they had to sign an Instrument of Accession. The Maharaja of Jammu and Kashmir, Hari Singh chose to remain an independent state. But due to external aggression from Pakistan and to save the territory from the attack of the Azad Kashmiri forces, he signed the accession treaty with Jawaharlal Nehru on 26th October 1947. This article was then passed on 27th May, 1949 as Article 306A. Article 370 became a tunnel through which the Constitution of India is applied in the State of Jammu and Kashmir. The present study is aimed to trace the origin and explanation of Article 370 and the circumstances surrounding its abrogation of the state .

What is Article 370?

Firstly, before explaining what this article actually means, I would like to quote the bare text from the Constitution of India:

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

(1) Notwithstanding anything in this Constitution,

the provisions of Article 238 shall not apply 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 that State; and

(ii) 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 recognised 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 ;

(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 (i) 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 (ii) 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. ^[1]

According to this article, except for the areas of defence, foreign affairs, finance and communications, the Parliament of our country needs the approval from the State Government of Jammu and Kashmir for applying any other law. Hence, the residents of Jammu and Kashmir live under two separate laws for various domains such as citizenship, ownership of property and fundamental rights as compared to other Indians. Indians belonging to any other state cannot purchase land or property in Jammu and Kashmir. Even in the extreme cases such as Financial Emergency (Article 360) , the centre does not have the power to declare it in the state. Only in the case of war or external aggression, an emergency can be declared by the centre which would govern the state too. Thus, immense internal disturbances or chances of imminent danger too does not stand a chance for the Union government to declare an emergency.

Main features of the article:

Indian Parliament cannot make any law without the consent of state Assembly.
Jammu Kashmir has its own flag and constitution.
President rule cannot be proclaimed in that state Only Governor rule can be imposed.
Jammu Kashmir has its own Criminal code as well.
Except for Defence, Foreign Affairs, Finance and Communications, the Indian Government needs the State Government’s nod to apply all other laws. The central government has no power to impose financial emergency in the state Emergency are often obligatory solely on the grounds of internal disturbances and impending danger from a far off enemy.
Therefore, the state government has the control on how it needs to govern the state without worrying about the consent of the central government.
Due to this article, Indian nationals belonging to other states cannot buy land or property in the state of Jammu and Kashmir.

Presidential orders:

The frequent use of presidential orders under Article 370 which allowed writs to be passed by the centre in Jammu and Kashmir has weakened the article in the constitution. A series of presidential orders beginning from 1950 has eroded the article from its essence. Till date (including the latest order leading to the abrogation of the article) more than 50 orders has been passed in the state; the notab
le ones are:

Presidential order of 1950

This order came along with the Constitution of India, when it came into force on 26th January, 1950. 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 can make laws for the State. All along, under this order 235 articles still were inapplicable from the Indian Constitution, 9 were partially applicable and 29 were applicable in a modified form. (This order was superseded in 1954 by a new Presidential order).^[2]

Presidential order of 1952

This order was made on the request of the State Government. Basically it amended the article 370. The phrase in the article which was “recognised by the President as the Maharaja of Jammu and Kashmir” got replaced by “recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat.” The amendment also portrayed that the monarchy in Jammu and Kashmir was abolished.”^[3]

Presidential order of 1954

By this order, almost the entire Constitution (including most constitutional amendments) was extended to Jammu and Kashmir. Ninety-four out of 97 entries of the Union List are today applicable to Jammu and Kashmir. Thus, on 94 subjects Parliament already has the exclusive power to pass laws that will be applicable to Kashmir just like any other state. Two hundred and sixty out of 395 Articles of the Constitution have been extended to the state. Similarly of the 12 Schedules of the Constitution of India, seven have already been provisions of the Constitution of India applicable to Jammu and Kashmir. ^[4]

Further orders

Around 50 more orders has been issued since 11th February 1956 which made various other provisions of the Constitution of India applicable to Jammu and Kashmir. ^[5]

Discussion:

Article 370 was basically a provision which connected the whole of India with Jammu and Kashmir. It granted the state the right to have its own separate flag, own separate constitution and in the beginning limit the involvement of the central government only in three aspects, namely external affairs, communication and defense.

So, according to this, any outsider could not purchase land and property, apply for government jobs, get educational scholarships and vote for candidates in different polls.

What has happened now?

After the second stint of the National Democratic Alliance (NDA) begun under the leadership of the Prime Minister of our country, Shri Na
rendra Modi; one thing was absolutely clear that this article would be dealt with in some way or the other, I can say this because in BJP’s political campaign it was clearly mentioned. And in August 2019 finally, the Government of India revoked the special status through a Presidential Order and the passage of a resolution in the Parliament.

If one exactly tries to see what the government has done, he or she would notice that the article has not been actually removed but by the use of the article itself, it has been declared null and void, using clause 3 of the article which states that “…the President may, by public notification, declare that this article shall cease to be operative or shall be operative solely with such exceptions and modifications and from such date as he might specify…”

So, basically the President and the state government can take this decision of abrogating the article together. But the situation there is right now is that, there does not exists any state assembly in Jammu and Kashmir because of President’s rule prevalent in the state. Hence the powers of the state were transferred to the Parliament of India. Hence, the Parliament after the declaration of the Presidential Order can decide whether or not this article should be declared null and void; and that is what happened. Thus, due to the removal of Article 370, Article 35A also becomes null and void. That means the whole concept of Permanent Resident-ship also gets removed.

What does this mean?

After the abrogation, the people living in and out of Jammu and Kashmir would have to get accustomed to the following changes:

Jammu and Kashmir will be bifurcated into two separate union territories: one called Jammu and Kashmir itself and other being of Ladakh.
The state would become like any other state or union territory of India.
The residents holding dual citizenship will now have a single citizenship of India.
The union territory of Jammu and Kashmir will have a constituent assembly, just like that of Delhi, but the union territory of Ladakh would not have something like that and it will be governed from the centre itself.
The centre will be responsible for administrative as well as local governance also.
Anyone can settle in Jammu and Kashmir.
According to the constitution of Jammu and Kashmir, the tenure of the state assembly used to be 6 years but now it would become the standard which is being followed in every state of India, i.e., 5 years.

Was this a right or a wrong decision from our Government’s side? Let’s explore this situation taking in regard the views of the people from both the sides.

People who support the decision:-

Reason 1: Economic Development

People say that this is a win-win situation for both the people from rest of India and the people of Kashmir; as Indian people who were not the residents of Kashmir will be able to buy land and properties in Kashmir, and also put up some investment in the state. This will increase the price of the lands. Local Kashmiris would be benefitted from this as they would earn a good amount of money when they would lease out or sell their land. Companies would also put up investment in the state. Education sector will get a boost as students from all over the country would be able to come, study and get scholarships in Kashmir. All this would lead to an overall economic development.

Reason 2: More jobs = Less terrorism

Development and investment in Kashmir would lead to opening up of new job positions. Employment level would increase. This would all lead to reduction in the level of crime and also terrorism, because as more and more people would get employed and would start doing proper work which would lead to less and less people getting diverted and choosing the way of terrorism.

Reason 3: Benefits under Indian Law

Now the people of Kashmir would come under each and every law of our country and hence would be able to enjoy all the rights w
hich are provided to the people of our nation such as right to education and right to information.

Reason 4: Good for Kashmiri Pandits

The Kashmiri Pandits (also known as Kashmiri Brahmins) are Kashmiri Hindus and a part of the larger Saraswat Brahmin community. They belong to the Pancha (five) Gauda Brahmana groups from the Kashmir Valley, a mountainous region in the Indian state of Jammu and Kashmir. Kashmiri Pandits originally lived in the Kashmir Valley before Muslim influence entered the region after which large numbers converted to Islam.^[6]

The ones who do not converted to Islam had to run away from the state. Now after the revocation, they would be able to come back to their native state.

Reason 5: Psychological Impact
Lastly, it is said that there will be a psychological impact in the state. As now they would have the same flag and the same constitution. People from Jammu and Kashmir would feel more integrated to our nation.

People who are against the decision:-

Reason 1: People of Kashmir were not asked
The people who are against the decision have a very simple argument stating that the people of Kashmir were not asked about this before taking such a big decision. A large number of troops were moved in, internet data and landlines got switched off, more than 400 politicians, aides and separatist were kept under house arrest. People were asked not to come out of their homes. While this all was happening, the central government took the decision and Kashmiris were fully unaware of what was happening.

Reason 2: Fascists and undemocratic
People around the country are saying that this act of the government was an illegal occupation; the government made them deaf, dumb, blind and rendered them stateless. This is being compared to fascism. Army was called in and without asking anyone this decision of revocation was imposed upon them.

Reason 3: Unconstitutional Cheating

In 2018, the state assembly of Jammu and Kashmir was dissolved, and President’s rule was imposed. The idea of further elections to vote and choose a new government was being kept pushed forward. This act was compared to nothing less than a proper dictatorship as the voices of the residents of the state remain unheard along with the voices of the democratically elected heads. The central government took this decision of abrogation using a loophole. Constituent assembly didn’t existed at the time when this decision was taken and as per clause 3 of Article 370 it is necessary for the assembly to give their consent.

Reason 4: Illegal occupation
Some separatists argue that Article 370 was the only reason through which Jammu and Kashmir was considered a part of India. They also say that there is no legal basis which says that Kashmir should remain a part of India. This may lead to problems in the United Nations. They also say that Kashmir will now become a military occupied Indian state.

Reason 5: No debates, no discussions
The last point which argues against this decision is that the haste with which the bill was passed. There was no discussion, no debate in the Parliament.

Jammu and Kashmir- A Union Territory:

Other than the abrogation of the Article 370, a separate decision was also taken up which was that the state will be divided into two halves- the union territory of Jammu and Kashmir and the union territory of Ladakh. While Jammu and Kashmir would still have an elected constituent assembly like how it is Delhi at present, but Ladakh would not and it would be governed directly from the centre.

This decision is significant because earlier Jammu and Kashmir enjoyed being under the purview of Special Status. Below this category falls the Normal States and below that Union Territories. The democratic power enjoyed by the union territories is below than that enjoyed by a normal state. Thus, Jammu and Kashmir though would have an elected government but would not enjoy autonomy as the central government has much more control and say over a union territory as compared to a normal state.

The people who are against the decision have raised a valid point that the people of Jammu and Kashmir can choose their very own government but that government would not be able to decide and give their say in every matter. In addition to that, if the government in the state is of a different party and at the centre the government is of another party, then that would lead to clashes in views and decisions. The conflicts would be similar to what is happening right now in New Delhi.

People in fact also fear that what has happened in Jammu and Kashmir can happen to any other state of India too.

Conclusion:

Now, when it comes to the author’s personal opinion; he leans more towards the category which supports the decision. Removal of Article 370 seems like the correct thing to do. Jammu and Kashmir will move forward to more development in the state. There will be economic progress, more jobs will be created. But he does not support the way in which this particular decision was implemented.

Another thing to question is that what would be the long-term impact of this decision. If the people of Kashmir only do not accept this decision and would not be ready for the integration of the state fully with the nation and if the central government would keep on taking these important decisions without taking the people’s opinion into consideration, then the long-term impact could be fatal. The intentions for which this was done by the BJP-led government would not be met.

The main purpose of the abrogation is integration of Jammu and Kashmir with India would not be achieved unless and until the local people would not want to be integrated with the nation. There is a big unrest in the state right now and maybe that would in sometime die down, but if something like this is put upon the people of Kashmir without even taking their opinion into consideration, the whole act of the government would not succeed, and unrest would be rampant in the state for a long time.

If this decision was taken up after taking the views and opinions of the people of Kashmir or at least the politicians and leaders’ opinion would have been taken into consideration, or maybe first an elected body was formed in Jammu and Kashmir and then this discussion would have then taken place then perhaps things must have been better than what it is right now. But maybe if the above assumptions were present when this abrogation was being discussed then maybe this whole operation would not have been possible to be completed. The author does not support the other decision of making Jammu and Kashmir a union territory. It can be simply seen that the centre wants to reduce the democratic power of the state.

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Bibliography:

List of Books

D.D.Basu, Shorter Constitution of India 1737 (Wadhwa and Company, Nagpur,13th edn., 2004).
V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11th edn., 2008).
D.D.Basu, Commentary on the Constitution of India 35 (Wadhwa and Company, Nagpur, vol-1, 8th edn., 2007).
Vepa P.Sarathi, Interpretation of Statutes 691 (Easter Book Company, Lucknow 4th edn., 2003).
D.D.Basu, Comparative Constitutional law 623(Wadhwa and Company, Nagpur, 2nd edn., 2008).
M.P.Jain, Indian Constitutional Law 779(Lexis Nexis Butterworths Wadhwa, Nagpur,vol-1, 6th edn., 2010).

List of Articles

Amitabh Hoskote, “Jammu & Kashmir & The Politics of Article 370: Seeking legality for the Illegitimate”
Aditya Shukla and Sumit Mishra, “Article 370, An Advantage or Disadvantage”

List of Cases

Prem Nath v. State of Jammu and Kashmir, 1959 AIR 749
Kumari Vijayalakshmi Jha v. Union of India, W.P.(C) 9300/2015

List of Websites

www.wikipedia.org
www.indiankanoon.org
www.scconline.com

[1] https://indiankanoon.org/doc/666119/

[2] https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India#Presidential_orders

[3]supra

[4] supra

[5] supra

[6] https://en.wikipedia.org/wiki/Kashmiri_Pandit