Article 370 of Indian Constitution

                      

                        This article was written by Deepika, Legal Associate at 24X7 Nyaya edited by Abhishek.

 

Introduction: -

Article 370 of the Indian Constitution was a temporary provision that allowances special status to the State of Jammu and Kashmir. This Article is Temporary in that the Jammu and Kashmir Constituent Assembly has the authority to change, omit, or maintain it. It was also regarded as Temporary only until a plebiscite was held to discover the public's preference. But there has recently been a heated argument over whether or not this Article should be considered transitory. The government and judiciary have asserted that these rules are unalterable on several occasions. The history of Article 370 and its current status under the Indian Constitution are the subjects of the current article.

Both India and Pakistan claim full sovereignty over the Himalayan territory of Kashmir. Previously known as Jammu and Kashmir (J&K), the region became part of India in 1947, not long after the subcontinent was partitioned following the end of the British administration. After India and Pakistan went to war over it and came to control different areas of the region, a ceasefire line was agreed upon. A separatist revolt against Indian rule has resulted in violence in the Indian-controlled state of Jammu and Kashmir for 30 years.

 

Brief of Article 370: -

Article 370 of the Constitution grants the State autonomy. The transitional clause in this Article is taken from Part XXI of the Constitution's "Temporary, Transitional and Special Provisions," which accords the State of Jammu and Kashmir unique status. On October 17, 1949, this article was added to the Constitution, exempting the State from the Indian Constitution save for Articles 1 and 370 and allowing the State to create its own Constitution. Additionally, it limits the legislative authority of the Parliament over Jammu and Kashmir. There are numerous laws and statutes in India that are relevant to the entire country but do not apply to the State of Jammu and Kashmir. With the exception of the topics pertaining to military, foreign policy, finance, and communication, this Article enabled the State to have complete power over 94 of the 97 items on the Union List. However, because each State has its own set of laws, the Parliament must obtain the State government's approval before implementing any of the 94 items listed above. Regarding citizenship, ownership, and Fundamental Rights, the residents of the state were subject to different laws and regulations than those of the union. As a result, any Indian citizen who isn't a citizen of the state permanently was unable to purchase real estate in Jammu and Kashmir.

The revocation of Article 370 in August 2019 effectively ended Jammu and Kashmir's special status, marking a significant turning point in the region's history that received little opposition from the international world. Except for China and Pakistan, most countries were hesitant to openly criticize India's actions in Kashmir. The minimal international response to India's actions was primarily focused on the humanitarian crisis in the valley, as opposed to the constitutional amendments itself. By virtue of Article 370, J&K was excused from the Indian Constitution's application and given permission to draft its own constitution. It restricted Parliament's ability to pass laws affecting J&K. Only when extending a central law to subjects covered by the Instrument of Accession (IoA) was the state government to be "consulted." To expand it to other situations, though, the state government's approval is necessary. The Indian Independence Act of 1947 resulted in the division of British India into India and Pakistan, and the IoA went into effect.

 

Features of Article 370: -

1.    The State of Jammu and Kashmir has its own different flag and constitution.

2.  The presidential rule cannot be imposed in the state, only the Governor’s rule can be proclaimed. The Government of India cannot declare a financial emergency under Article 360 in the state. Only a national emergency can be imposed in matters of external aggression or war.

3.    The state has its own Criminal code titled as Ranbir Penal Code. 

4.    The citizens in the state have dual citizenship.

5.    The term of other Indian state Legislators is 5 years whereas, for Kashmir, it was 6 years.

 

How Article 370 was implemented: -

The initial draft of Article 370 was given by the J&K government. Before being adopted by the Constituent Assembly on May 27, 1949, Article 306A (later renamed as Article 370) was altered and discussed. According to the member who moved the resolution, even if accession was complete, India had offered to hold a plebiscite when the requirements were satisfied. If accession was not confirmed, "we shall not stand in the way of Kashmir divorcing herself from India," was the belief. Even if accession was complete, the resolution's sponsor claimed, India had offered to hold a referendum once the conditions were met. "We shall not stand in the way of Kashmir divorcing herself from India," was the attitude if accession was not confirmed.

 

Significance of Article 370 for the Indian Union: -

There are only two such Articles in the Indian Constitution that apply to Jammu and Kashmir. Jammu and Kashmir State is listed among the states in Article 1. One such loophole that makes it possible for the Constitution to be applied in the state is Article 370. It has been noted that India has applied Article 370 at least 45 times to include Jammu & Kashmir in the scope of the Indian Constitution's provisions. India is the only country that may effectively negate the effects of the state's special status with just one presidential order under Article 370. More of the articles of the complete Constitution and its modifications became applicable to the State of Jammu and Kashmir when Order was passed in 1954. In addition to 7 out of 12 Schedules, 260 out of 395 Articles are extended to the state, as are 94 out of 97 Union List topics, 26 out of 27 Concurrent List items, and 26 out of 27 Articles.

Even after the President was denied this authority, the Central administration used Article 370 to change the terms of the Jammu and Kashmir Constitution. Article 249 of the Constitution, which gives the Parliament the authority to enact laws regarding entries on the State List, was applicable to the state based solely on the Governor's recommendations and without the need for an Assembly decision.

 

Revocation of Article 370 with an amendment of Article 367: -

On August 05, 2019, Article 370 ceased to be operative under the Constitution of India. The Government of India has revoked the special status of Jammu and Kashmir and took steps to change the regulation of the region. 

The transitional clause under the Constitution was Article 370. J&K is covered by Articles 1 and 370 according to Article 370(1)(c), while Article 370(1)(d) permits the state to be covered by further provisions as determined by the President's order with the consent of the J&K Constituent Assembly. Article 370 could only become inoperative if the state's Constituent Assembly was able to recommend it to the President. Additionally, Article 370 was only intended to be a temporary measure until Kashmir's Constituent Assembly could adopt its Constitution.  However, the Constituent Assembly of Kashmir was dissolved in 1957 without making any recommendation for amendment or abrogation of Article 370. Because of this, the Indian Supreme Court determined in the aforementioned judgments that Article 370 is a tenacious clause of the Indian Constitution. In order to solve this issue, the Union Government developed a remedy. In order to indirectly change Article 370(3) through Article 367, they have exploited the President's authority under Article 370(1). 

Article 367 is also an interpretation clause of the Constitution and added a new sub-clause 4(d). According to this amendment clause, “Constituent Assembly” under Article 370(3) must be read as “Legislative Assembly of the State”. As a result, the J&K Assembly was now authorized to suggest that Article 370 be repealed. However, the fact that Jammu and Kashmir were also under to presidential rule presented a fresh issue, leading to the recommendation being made by Parliament under the newly updated Article 370 (3). According to this, the Home Minister's resolution made a recommendation to the President to repeal Article 370. As a result, the President was entitled to proclaim that Article 370 was no longer in effect. As a result, Article 370 is not now applicable under the Constitution.

 

Conclusion: -

The state of Jammu and Kashmir is an integral part of India. Due to federalism and the state's unique history of joining the Union of India, the state has been granted limited autonomy under Article 370.  The question of autonomy or federalism, not integration, is the one raised by Article 370. Following the 2018 ruling, the Apex Court declared that Article 370 is a permanent clause because the State's Constituent Assembly is no longer in existence. Article 370 was declared "inoperative" by the Indian Government in order to overcome all other legal obstacles, but it still has its position in the Indian Constitution.  

                                                            

                                                              This article has been published by: Monisha kalita