What is Article 370 and why is it politically significant
Article 370 of The constitution is a ‘temporary provision’ which promises to grant autonomous
status to Jammu and Kashmir and limits Parliament’s powers to make laws for the
state. Under Part XXI of the Constitution titled “Temporary, transitional and
special provisions", Article 370 is categorised as a “temporary provision
with respect to the State of Jammu and Kashmir".

In effect, Article 370 says that Parliament will need the state
government’s concurrence for applying any law, except those that fall in the
domains of defence, foreign affairs, finance and communications. Issues like
ownership of property, fundamental rights and citizenship are covered under a
separate law for Jammu and Kashmir.
It also lays down
that only two Articles of the Constitution will apply to Jammu and Kashmir – Article 1 which
defines India and Article 370 itself. The provision was included in the
Constitution on 17 October, 1949.
ARTICLE 370 embodies six special provisions for Jammu
and Kashmir.
First, it exempted the State from the provisions
of the Constitution providing for the governance of the States. Jammu and
Kashmir was allowed to have its own Constitution within the Indi an Union.
Second, Parliament's legislative power over the
State was restricted to three subjects - defence, external affairs and
communications. The President could extend to it other provisions of the
Constitution to provide a constitutional framework if they related to the
matters specified in the Instrument of Accession. For this, only
"consultation" with the State government was required since the State
had already accepted them by the Instrument.
But, third, if other "constitutional"
provisions or other Unio n powers were to be extended to Kashmir, the prior
"concurrence" of the State government was required.
The fourth feature is that that concurrence was
provisional. It had to be ratified by the State's Constituent Assembly. Article
370(2) says clearly: "If the concurrence of the Government of the State...
be given before the Constituent Assembly for the pu rpose of framing the
Constitution of the State is convened, it shall be placed before such Assembly
for such decision as it may take thereon."
The fifth feature is that the State government's
authority to give the "concurrence" lasts only till the State's
Constituent Assembly is "convened". It is an
"interim" power. Once the Constituent Assembly met, the State
government could not give i ts own "concurrence". Still less, after
the Assembly met and dispersed. Moreover, the President cannot exercise his
power to extend the Indian Constitution to Kashmir indefinitely. The power has
to stop at the point the State's Constituent Assembly draft ed the State's
Constitution and decided finally what additional subjects to confer on the
Union, and what other provisions of the Constitution of India it should get
extended to the State, rather than having their counterparts embodied in the
State Const itution itself. Once the State's Constituent Assembly had finalised
the scheme and dispersed, the President's extending powers ended completely.
The sixth special feature, the last step in the
process, is that Article 370(3) empowers the President to make an Order
abrogating or amending it. But for this also "the recommendation" of
the State's Constituent Assembly "shall be necessary before the
President issues such a notification".
Why is the Article so important to keep Jammu and
Kashmir as a part of India?
·
According
to the Constitution of India, Article 370 provides temporary provisions to the
state of Jammu and Kashmir, granting it special autonomy.
·
The
article says that the provisions of Article 238, which was omitted from the
Constitution in 1956 when Indian states were reorganised, shall not apply to
the state of Jammu and Kashmir.
·
Dr BR
Ambedkar, the principal drafter of the Indian Constitution, had refused to
draft Article 370.
·
In
1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader
Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the draft of
a suitable article to be included in the Constitution.
·
Article
370 was eventually drafted by Gopalaswami Ayyangar.
·
Ayyangar
was a minister without portfolio in the first Union Cabinet of India. He was
also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir.
·
Article
370 is drafted in Amendment of the Constitution section, in Part XXI, under
Temporary and Transitional Provisions.
·
The original
draft explained "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 Maharaja's Proclamation dated the fifth day of March, 1948."
·
On
November 15, 1952, it was changed to "the Government of the State means
the person for the time being recognised by the President on the recommendation
of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor)
of Jammu and Kashmir, acting on the advice of the Council of Ministers of the
State for the time being in office."
·
Under
Article 370 the Indian Parliament cannot increase or reduce the borders of the
state.
Abrogation of article 370
Article 370 cannot be abrogated or amended by recourse
to the amending provisions of the Constitution which apply to all the other
States; namely, Article 368. For, in relation to Kashmir, Article 368 has a
proviso which says that no constitutional amendment "shall have effect in
relation to the State of Jammu and Kashmir" unless applied by Order of the
President under Article 370. That requires the concurrence of the State's
government and ratification by its Constituent Assembly.
Jammu and Kashmir is mentioned among the States of the
Union in the First Schedule as Article 1 (2) requires. But Article 370 (1) (c)
says: "The provisions of Article 1 and of this Article shall apply in
relation to that State". Article
1 is thus applied to the State through Article 370.
Key
changes after amendment :
·
The President
had used his powers under Article 370 to fundamentally alter the provision, extending all Central laws, instruments and treaties to
Kashmir. However, the drastically altered Article 370 will remain on the statute books.
·
While the Union Territory of Jammu and Kashmir will have a legislature,
the one in Ladakh will not.
·
The notification by the president
has effectively allowed the entire
provisions of the Constitution, with all its amendments, exceptions and
modifications, to apply to the area of Jammu and Kashmir.
·
The Bill proposes wide powers to the Lieutenant Governor of the
proposed Union Territory of Jammu and Kashmir and makes it the “duty” of the
Chief Minister of the Union Territory to “communicate” all administrative
decisions and proposals of legislation with the LG.
·
All
Central laws and State laws of J&K would apply to the new Union Territories
of J&K and Ladakh.
·
Assets and
liabilities of J&K and Ladakh would be apportioned on the recommendation of
a Central Committee within a year.
·
Employees of State public sector
undertakings and autonomous bodies would continue in their posts for another
year until their allocations are determined.
·
The police and public order is to be with the Centre.
·
The notification amends the
expression “Constituent Assembly”,
contained in the proviso to clause (3) of Article 370, to mean “Legislative
Assembly”.
Impact:
- The tabling of the proposed
Reorganisation Bill is also proof that the long reign of the 1954
Order has ended. The 1954 Order had introduced a proviso to
Article 3, namely that “no Bill
providing for increasing or diminishing the area of the State of Jammu and
Kashmir or altering the name or boundary of that State shall be introduced
in Parliament without the consent of the Legislature of that State“.
That power of the State Legislature to give prior consent does not exist
anymore. This has provided a free hand to the Centre to table the
Reorganisation Bill.
- With the removal of the
1954 Order, the power of the
State Legislature ceases to exist and Parliamentary laws, including that
of reservation, would apply to Jammu and Kashmir as it does in other parts
of the country.
- The government called this the
end of “positive discrimination”
and the closing of the “chasm” between residents of J&K and citizens
of other parts of the country.
- The removal of the 1954 Order
further also negates a clause which was added to Article 352. The Order had
mandated that no proclamation of Emergency on grounds “only of internal disturbance
or imminent danger shall have effect” in the State unless with the
concurrence of the State government.
Role and powers of the Lieutenant
Governor after amendment
The Bill specifies that the Union
Territory of Jammu and Kashmir and the Union Territory of Ladakh will have
a common Lieutenant Governor.
·
Appointment
of L-G in Ladakh: The President shall appoint
the L-G under article 239. The L-G will be assisted by advisors appointed by
the Centre since the Union Territory will not have a Legislative Assembly.
·
In the case of Union Territory of
Jammu and Kashmir, the L-G shall “act in his discretion” on issues which fall
outside the purview of powers conferred on the Legislative Assembly, in which
he is required to exercise any judicial functions, and/or matters related
to All India services and the Anti-Corruption Bureau
·
The Chief Minister shall be
appointed by the L-G who will also appoint other ministers with the aid of the
CM. The L-G shall also administer the oath of office and of secrecy to ministers
and the CM.
·
The L-G will have the power to
promulgate ordinances which shall have the same force and effect as an act of
the Legislative Assembly assented by the L-G.
Is this all legal?
According to the
constitution, Article 370 could only be modified with the agreement of the
"state government". But there hasn't been much of a state government
in Jammu and Kashmir for over a year now. This meant the federal government
only had to seek the consent of the governor who imposes its rule.
The government says it is
well within its rights to bring in the changes and that similar decisions have
been taken by federal governments in the past.
Article
35 A

It was inserted
through the Constitution (Application to Jammu and Kashmir) Order, 1954, which was
issued by President Rajendra Prasad under Article 370, on the the advice of the
Nehru-led Union Government.
When the J&K Constitution was adopted in 1956, it defined
a permanent resident as someone who was a state subject on May 14, 1954, or who
has been a resident of the state for 10 years, and has lawfully acquired
immovable property.
To guarantee these special rights and privileges, the
Article says no act of the state legislature that comes under it can be
challenged for violating the Constitution or any other laws.
Historical
Background
- Article
35A was incorporated into the Constitution in 1954 by order of the then
President Rajendra Prasad as advised by the Jawaharlal Nehru Cabinet. This
controversial order of 1954 followed the 1952 Delhi Agreement entered into
between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh
Abdullah, which led to the extension of Indian citizenship to the State
subjects of Jammu and Kashmir.
- It
was under Article 370 (1) (d) of the constitution that this unique
Presidential order was issued. This provision allows the President to make
certain exceptions and modifications to the Constitution for the benefit
of State subjects of Jammu and Kashmir. In this way, Article 35A was added
to the Constitution as a proof of the special consideration the Indian
government bestowed upon the permanent residents of Jammu and Kashmir.
Who is a
Permanent Resident of J&K?
The issue of the definition of the
permanent resident of J&K is at the heart of the controversy surrounding
Article 35A. The 1956 Jammu and Kashmir Constitution actually defines a
Permanent Resident as one who must be a citizen of India and a state subject on
May 14, 1954, or a resident of the state for ten years, and owns immovable
property in the state .
Negative
Aspects of Article 35A
- It
forbids Indian citizens from settling in the state, acquiring immovable
properties, seeking employment in the state.
- The
critique of this article from the angle of women s rights is equally
strong. If a native woman marries a man not holding a permanent resident
certificate of Jammu & Kashmir, then she would lose her property right
and their children also become ineligible to claim the property of their
mother.
- It
conflicts with (rather violates) fundamental rights under Articles 14, 19
and 21 of the Constitution
- Critics
also allege that Article 35A has catalysed in radicalization and aids
separatist ideology.
- Not
granting permanent resident status to the West Pakistan refugees is very
inhuman and grossly undermines their well-being. It also undermines their
faith in the goodness of India as well as its impartial judicial system.
- Article
35A also adversely affects the economic development of the state.
Why
scrapping Article 35A would be a bad idea?
- The
removal of Article 35A would change the demography of Kashmir. The
separatist might fan anti-India feelings in the valley by politically
misusing the issue. The hardening of the posture by the separatists will
consequently disturb normalcy in the state.
- The
removal of Article 35A would also indirectly impact the special provision
bestowed upon Mizoram, Nagaland etc. under Article 371.
- It
is also alleged that it will lead to erosion of Jammu and Kashmir s
autonomy.
How Article 35A is against the “very spirit of oneness of
India” as it creates a “class within a class of Indian citizens”?
·
It treats non-permanent
residents of J&K as ‘second-class’ citizens.
·
Non-permanent residents of J&K
are not
eligible for employment under the State government and are also debarred from
contesting elections.
·
Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
·
Further, the issues of refugees who
migrated to J&K during Partition are not treated as ‘State subjects’
under the J&K Constitution.
·
It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the
Constitution.
·
The laws enacted in pursuance of
Article 35A are ultra vires of the fundamental rights conferred by Part III of the
Constitution, especially, and not limited to, Articles 14 (right to equality)
and 21 (protection of life).
Challenges ahead for article 370 and
35A:
- The move will be legally
challenged on grounds of procedural infirmities and, more substantively,
that it undermines the basic feature of the compact between Delhi and
Srinagar that was agreed upon in 1947.
- Law and order maintenance
challenge.
- The President’s power under
Article 370 has been used both to create an enabling provision and to
exercise it immediately to modify the Order, thereby dispensing with the
role envisaged for the State Assembly.
- While it is true that in 1961
the Supreme Court upheld the President’s power to ‘modify’ the
constitutional provisions in applying them to J&K, it is a moot
question whether this can be invoked to make such a radical change: a
functioning State has now been downgraded and bifurcated into two Union
Territories.
- But beyond the legality, the
real test will be on the streets of Srinagar, Jammu and Delhi once the
security cordon is lifted from the State.
- What was unbecoming is the
unwillingness to enter into consultation with the mainstream political
leaders; in no other State would former Chief Ministers have been dealt
with so cavalierly.
International reaction
On the international
front, the UN, U.S. and China have rebuffed Pakistan on all fronts in its
effort to seek international mediation and intervention in its campaign against
New Delhi’s recent move. Even Russia is backing India and said that “India’s J
& K move was carried out within framework of the Indian Constitution.”
The biggest blow
came from the influential United Arab Emirates, which stated that Kashmir was
an internal matter for India, withdrawing any support to raise the issue
internationally.
Way forward
The battle for doing away with 370
was easy. The battle for the hearts and minds (of people) is the larger war to
be wonIt’s not a real estate issue, it’s about the welfare of the people that
was being compromised by a false sense of autonomy.
India is the only landmass with an unbroken democracy.
It is the world’s largest, with more voters than people in the EU and US
combined. The world now recognizes India’s worth as a democratic nation in a
dangerous neighbourhood and wants it as an ally. India wants global engagement
in its self-interest.
This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents
of J&K that any
alteration in status quo will not take away their rights but will boost
J&K’s prosperity as it will open doors for more investment, resulting in
new opportunities.
We must be able to make Kashmiri Muslims understand
that all manner of cultural markers over 2500 years of Kashmiri history (right
from 500 BCE onwards) display unequivocally a Kashmir that was intensively
integrated with the rest of India. In the face of this historical reality of
Kashmir, Article 370 as an exclusionary means artificially separating Kashmir
from the rest of the country was an anomaly that has now been removed.
We must promote
pluralism in the state so that all communities can live together as they did
before Pakistani trained militants forced Kashmiri Pandits to leave Kashmir
valley. Intra-Kashmiri dialogue, exchanging programs of students, writers,
artists to offer their strengths in all the regions will definitely help in
reconnecting and reintegrating hearts and minds of the people.
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