Understanding Article 370

Article 370 of the Constitution of India

Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future.

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir.

Image Credits: http://bit.ly/2Lt9djH

The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether.

After the J&K Constituent Assembly later created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution

Purpose of Article 370

The state of Jammu and Kashmir’s original accession, like all other princely states, was on three matters: defence, foreign affairs and communications.

All the princely states were invited to send representatives to India’s Constituent Assembly, which was formulating a constitution for the whole of India and encouraged to set up constituent assemblies for their own states.

Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and Mysore.

Even though the States Department developed a model constitution for the states, in May 1949, the rulers and chief ministers of all the states met and agreed that separate constitutions for the states were not necessary.

The states that did elect constituent assemblies suggested a few amendments which were accepted. The position of all the states (or unions of states) thus became equivalent to that of regular Indian provinces.

In particular, this meant that the subjects available for legislation by the central and state governments was uniform across India.

In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State.

Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly.

This was a “temporary provision” in that its applicability was intended to last till the formulation and adoption of the State’s constitution.

However, 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 become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.

Article 370 embodied six special provisions for Jammu and Kashmir

1. It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
4. The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
5. The State Government’s authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
6. The Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.

Implications

This article specifies that the State must concur in the application of laws, except those that pertain to Communications, Defence, Finance, and Foreign Affairs

The 1974 Indira-Sheikh accord between Kashmiri Politician Sheikh Abdullah and then Prime Minister Indira Gandhi stated, “The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India”.

In 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 was introduced to the effect 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 J&K PR, she automatically lost her own PR status.

But a 2002 high court ruling made it clear that a woman will remain a PR even after marriage to a non-PR, and enjoy all the rights of a PR. A People’s Democratic Party (PDP) government, led by Mehbooba Mufti, passed a law to overturn the court judgment by introducing a bill styled “Permanent Residents (Disqualification) Bill, 2004’.

This was not Mufti’s solo effort. Omar Abdullah’s party, the National Conference, backed this Bill and got it passed in the lower house of the assembly. But it did not ultimately see the light of day for various reasons.

Sheikh Mohammad Abdullah, the state’s Prime Minister and leader of the Muslims in the Valley, found the inclusion of Article 370 in the ‘Temporary and Transitional Provisions’ of the Constitution’s Part XXI unsettling.

He wanted ‘iron clad guarantees of autonomy’. Suspecting that the state’s special status might be lost, Abdullah advocated independence from India, causing New Delhi to dismiss his government in 1953, and place him under preventive detention.

In December 2016, the Supreme Court of India set aside a judgement of the High Court of Jammu and Kashmir which stated that Jammu and Kashmir had “absolute sovereign power” on account of Article 370.

The Supreme Court held that the state of Jammu and Kashmir has “no vestige” of sovereignty outside the Constitution of India and its own Constitution is subordinate to the Indian Constitution.

The Court upheld the applicability of SARFAESI Act to Jammu and Kashmir as it was under the Union list of subjects for which the Indian Parliament is empowered to enact laws for the whole of India, including Jammu and Kashmir.