Indian Polity: Amendments & Article 370

Article 370 of the Indian Constitution

Under the Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, Article 370 is a temporary provision granting special autonomous status to Jammu and Kashmir. Here is a backgrounder on this topic.

Historical Background

Immediately after independence, a major column of armed men from Pakistan had invaded Kashmir and they were nearly successful in capturing Srinagar. Confronted with the chances of losing Kashmir to Pakistan, Maharaja Hari Singh requested help from India. Immediately, Patel’s aid V P Menon arrived in Srinagar and told the maharaja that India could take action only if Kashmir acceded to India. It is widely believed that Maharaja wanted to keep is independence but reluctantly acceded to India due to the grave situation created by the Pakistani invaders. Thus, on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession.

Here, we need to note that the accession was partly provisional. For example, clause 7 of this instrument read that Maharaja was NOT committed to accept the future constitution of India. Similarly, clause 8 said that nothing in the instrument affected the sovereignty of the Kashmir. The subjects that were surrendered to India included Defence, External Affairs, Communications and some ancillary subjects such as elections and jurisdiction of courts in these three matters.

With such instrument in hands, India had sent its forces to Kashmir. Later, Sheikh Abdulla, who was under custody, was released by Maharaja Harsingh. Abdullah, although condemned the Pakistani attack on Kashmir yet asserted the sovereign right of the people of Kashmir to decide their future. In 1948, he was made the prime minister of Kashmir.

Meanwhile regrettably, Kashmir issue was taken to UN by Nehru and the issue was given a tag of international dispute between India and Pakistan. Not only that, India also made a promise of plebiscite in Kashmir. However, the idea of separate Kashmir was overruled.

By 1949, Sheikh Abdullah and Maharaja Harisingh decided that Kashmir should remain united with India with maximum possible autonomy. India granted a special status to Kashmir in article 306A of the Draft constitution. This special status was given as per clause 7 of the Instrument of Accession. At that time, Hasrat Mohani had objected the special status. But he also expressed hope that in due course Kashmir would become ripe for same kind of integration as similar to other states. The Article 306A was enshrined as Article 370 in the constitution as a “temporary provision”. Sheikh Abdullah did not want that to be a temporary provision and insisted for his iron clad guarantee of autonomy but India did not accept that.

Implications of Article 370

Article 370 specifies that except for Defence, Foreign Affairs, Finance and Communications the Indian Parliament needs the State Government’s concurrence for applying all other laws.  This has some peculiar implications as follows:

Applicability of parts

• Most provisions of the Constitution which are applicable to other states are not applicable to J&K. Part VI in whole is not applicable to Jammu & Kashmir.

Jurisdiction of Indian Parliament

• The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir is confined to the matters enumerated in the Union List, and also the concurrent list. There is no State list for the State of Jammu and Kashmir. At the same time, while in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary powers belong to the Legislature of the State, except certain matters to which Parliament has exclusive powers such as preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of India.
• The power make laws related to preventive detention in Jammu and Kashmir belong to the Legislature J & K and not the Indian Parliament. Thus, no preventive detention law made in India extends to Jammu & Kashmir.
• Kashmir enjoys some other privileges over and above the other states of India. For example, the plenry power of parliament with respect to alteration of the name or territories of the State (Art.3) does not extend to the state. Similarly, International treaty or agreement affecting any part of the territory of the state (Art.253) doesn’t extend to Jammu and Kashmir. Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. Any action of the Union Legislature or Union Executive which results in alteration of the name or territories or an international treaty or agreement affecting the disposition of any part of the territory of Jammu and Kashmir requires the consent of the State Legislature.

Emergency

• Initially, Article 356 and 357 did not apply to India. However, these two articles related to suspension of the Constitutional machinery in the state have been extended to the state by the Amendment Order of 1964. However, Failure means failure of the constitution machinery as set up by the Constitution of the State and not the provisions in part VI of the Constitution of the India. As a result, where the failure of the Constitutional machinery takes place in Jammu & Kashmir, two types of Proclamation may be made
  • The President’s Rule under Art. 356 of the Indian Constitution (as in the case of the other States of the Indian Union)
  • The Governor under section 92 at the Constitution of J&K for which there is no counter part in any other State of India.
• The Union of India has no power to declare Financial Emergency under Article 360 in the state.

Fundamental Rights

• Apart from the rights enjoyed by all states of India, some special right as regards employment, acquisition of property and settlement have been conferred on permanent resident of the State by constitution of Jammu and Kashmir. Right to property is still a fundamental right in the state.

DPSP & Fundamental Duties

• Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K.

Amendment of the Constitution

• The provisions of Art. 368 of the Constitution of India are not applicable for the amendment of the State Constitution of Jammu & Kashmir. The Jammu & Kashmir assembly by two third majority amend its own constitution (except in those matters that are related to relationship of the State with the Union of India)
• The Union has no power to suspend the Constitution of J&K.

Jammu & Kashmir High Court

• The High Court of J&K has limited powers as compared to other High Courts within India. It cannot declare any law unconstitutional. Unlike High Courts in other states, under Article 226 of the Constitution, it cannot issue writs except for enforcement of Fundamental Rights.

Amendment or abrogation of Article 370

Article 370(3) reads:

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".

Now the question is that the J&K has no longer a constituent assembly. This poses a moot question if the article can be amended or removed by Indian parliament.  Some jurists say it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370(1).

Demand for Abrogation of Article 370

The arguments in favour of and against the abrogation of article 370 are equally valid. Those who argue for abrogation of the article say that it has created certain psychological barriers and is root cause of all the problems. Moreover, Article 370 encourages secessionist activities in the country. It is also argued that at the time of enactment, it was a temporary arrangement which was supposed to erode gradually. This article is a constant reminder that Jammu and Kashmir is still to merge fully with India.

Those who argue against the article 370 say that the abrogation will cause serious consequences. They ask why there are separatist activities in other states which have not such special treatment by constitution. According to them, abrogation of this article would also violate the solemn undertaking by India given to state through the instrument of accession.