Permanence of special autonomy

On August 15, 1947, when India and Pakistan became independent states, the kingdom of Jammu and Kashmir did not cede to either dominion. Instead, its maharaja proposed a “Standstill Agreement” with both countries. In 1946, when Mohammed Ali Jinnah requested Muslims of Jammu and Kashmir to become a part of Pakistan, the Muslim masses rejected this argument and shouted “Go back Jinnah”, as recorded in Justice Adarsh Sein Anand’s seminal work The Constitution of Jammu and Kashmir, published in 1994. Pakistan entered into a Standstill Agreement with Jammu and Kashmir, but India did not. It wanted to hold further negotiations. And on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession whereby Jammu and Kashmir agreed to accede to the Union of India.

At the time of independence in August 15th 1947, the State of Jammu and Kashmir decided not to join either India or Pakistan. However, soon Pakistan attempted to annex the State military. Meanwhile, the Maharaja signed the “Instrument of accession” with India along with certain concessions for the autonomy of the State. article 370 in Part XXI of the Indian Constitution grants a special status to Jammu and Kashmir.

The important features of the special status are as follows:

  1. Jammu and Kashmir State has its own Constitution. this also implies that ‘dual citizenship’ principle is followed in this state.
  2. Contrary to the case with the other states, the residuary power lies with the legislature of the Jammu and Kashmir (and not the Parliament).
  3. The National emergency proclaimed only on the ground of war or external aggression shall have automatic extension to the State of Jammu and Kashmir. This means that National Emergency proclaimed on the ground of armed rebellion shall not have automatic extension to Jammu and Kashmir.
  4. The Governor of the State is to be appointed only after consultation with the Chief minister of that State.
  5. The Parliament is not empowered to make laws on the subjects of State of Jammu and Kashmir under any circumstance.
  6. Financial Emergency (Article 360) cannot be imposed on the State.
  7. apart from the President’s rule, Governors rule can also be imposed on the State for a maximum period of six months.
  8. The Preventive detention laws (article 22) of Parliament do not have automatic extension to the State.
  9. The name, boundary or territory of the State cannot be changed by the Parliament without the concurrence of the State Legislature.
  10. Article 19 (1) (f) and 31 (2) have not been abolished for this State and hence to properly still stands guaranteed to the people of Jammu and Kashmir.
  11. Part IV (dealing with DPSP) and Part IV A (dealing with Fundamental duties) are not applicable to the State.
  12. The president has has no power to suspend the Constitution of the State on the ground of failure to comply with the directions given by him.
  13. International treaty or agreement affecting the deposition of any part of the territory of the state can be made by the centre only with the consent of the state Legislature.
  14. An amendment made to the Constitution of India does not apply to the State unless it is extended by a Presidential order.
  15. The Fifth Schedule and the Sixth Schedule of the Constitution of India do not apply to the State.
  16. The High Court of Jammu and Kashmir can issue writs only for the enforcement of Fundamental Rights and not for any other purpose.

 

One keeps hearing a lot about Article 370 of the Indian Constitution in print, electronic, as well as new media. It is the This Article grants special status to Jammu & Kashmir. The BJP mentioned in its manifesto that the party would abrogate it if it comes to power in the general elections of 2014. There was a lot of hue and cry when the Prime ministerial candidate of BJP, Mr. Narendra Modi, mentioned during his campaign in Jammu, that there should be a debate over pros and cons of article 370. Now that BJP is in power, debates over Article 370 have sparked off once again. Many national leaders are still advocating the relevance of this Article, but the question that rises here is – what are the people of India and the people of J & K getting from Article 370?

Just two days after the new government swore into the PMO, the country is taken aback and is abyss as the news of repealing Article 370 has been announced. While the nation debates over this decision weighing the pros and cons of this article. But how much do you really know about the Article 370? Here is your guide to understand this article better.

 

  1. Why was it brought?

At the time of independence it was argued that Kashmir was not ripe enough for integration and felt a need to keep it exempted from the basic fundamental rights. This was the main reason for the insertion of Article 370.

  1. The protests

The inclusion of this article in the Indian constitution was questioned by many, including the architect of the constitution, Dr. B. R. Ambedkar and Sardar Vallabhai Patel. The main reason for this was the discrimination that came hand in hand with the insertion of this article.

  1. The “Temporary” provision

The article came with a tag that said it was temporary, giving hope that the state would also be integrated with time, however the day sadly has not yet come. The main clause for repealing this article was when there would be real peace and also when the people of the state approved of this arrangement.

  1. The implications

This article specifies that except for Defence, Foreign Affairs, Communications and ancillary matters (matters specified in the instrument of accession) the Indian Parliament needs the State Government’s concurrence for applying all other laws. Thus the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.

  1. The repealing of the article 370

The article states under the clause 3 that the president may declare this article shall cease to be operative by public notification, after the recommendation of the constituent assembly of Jammu and Kashmir and is willing to recommend its revocation.

  1. The changes made

A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State.

  1. Gender Bais

Many claim to have a negative thought about the Article 370 as it disqualifies women from the state of property rights. However it is less known that the article itself was gender neutral but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory.

 

ARGUMENTS FOR ARTICLE 370

The most vehement support for Article 370 obviously comes from the state of J&K itself. With insurgency consolidating its roots and, anti-India sentiments also not a rare phenomenon in the valley, any threat to the Article 370 would definitely pose a law and order crisis in the valley. In fact, former Chief Minister of J&K Omar Abdullah tweeted in March 2015, “Mark my words & save this tweet – long after ModiGovt is a distant memory either J&K won’t be part of India or Art 370 will still exist.”

However, even on ruling out the people’s protest in J&K and considering it only on legal basis, removal of Article 370 would not be an easy task. Currently, apart from Article 370, the only other legal proof which sanctions the accession of J&K to India is the Instrument of Accession signed between Government of India and the then ruler of J&K Maharaja Hari Singh. Problem with the Instrument of Accession is the inclusion of provision of plebiscite which has the potential to weaken India’s case in Kashmir issue. So until there is Article 370, there is no need for a plebiscite.

When Kashmir issue was referred to the United Nations (UN), the UN asked the Pakistan to evacuate the Pakistan Occupied Kashmir (POK) and a plebiscite was recommended in entire Kashmir. However, neither Pakistan evacuated nor India conducted a plebiscite.

ARGUMENTS AGAINST ARTICLE 370

In addition to the ruling BhartiyaJanta Party (BJP), almost all right wing organizations want the scrapping of Article 370 arguing that the article has become the single most important road block in making J&K an integral part of India. Any legislation passed by the Parliament is not applicable to the state till it is passed by the state assembly. For instance, acts like Right To Information (RTI), Right to Education (RTE), schemes like MNREGA do not have automatic extension to Jammu and Kashmir. Non-residents of the state cannot buy a property in the state. All these factors have widened the gap between the Indian Union and J&K state.

Many scholars argue instead of benefitting the state, Article 370 has only caused the impoverishment of the state and is also the impediment in the progress of the state. Though Article 370 was considered as merely a ‘Temporary, Transitional and Special’ provision, as the time passes, removal of Article 370 would become more difficult just like the provision of reservation in jobs which was also a temporary provision only for 10 years at the commencement of the constitution.

And last but not the least; we argue that in the absence of Article 370, only Instrument of Accession will be a proof of J&K being part of India. But our western neighbour Pakistan neither has any Instrument of Accession nor Article 370, but still it lays claim over J&K. Therefore, in any situation, India case would always be stronger than Pakistan.

 

PRESENT POSITION:

  • Jurisdiction of Parliament:

It is confined to the matters enumerated in the Union List, and the Concurrent List, subject to certain modifications, while it shall have no jurisdiction as regards most of the matters enumerated in the Concurrent List.

While in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary power shall belong to the Legislature of that State, excepting certain matters, specified in 1969, for which Parliament shall have exclusive power.

The power to legislate with respect to preventive detention in Jammu and Kashmir belongs to the Legislature of the State instead of Parliament so that no law of preventive detention made by Parliament will extend to that State.

By the Constitution (Application to Jammu and Kashmir) Order, 1986, however, Art. 249 has been extended to the State of Jammu & Kashmir, so that it would now be competent to extend the jurisdiction of Parliament to that State, in the national interest (e.g., for the protection of the borders of the State from aggression from Pakistan or China), by passing a resolution in the Council of States.

  • Autonomy of the State in Certain Matters:

The plenary power of the Indian Parliament is also curbed in certain other matters, with respect to which Parliament cannot make any law without the consent of the Legislature of the State of Jammu and Kashmir, where that State is to be affected by such legislation, e.g., (i) alteration of the name of territories of the State (Art. 3). (ii) International treaty or agreement affecting the disposition of any part of the territory of the State (Art. 253).

Similar fetters have been imposed upon the executive power of the Union to safeguard the autonomy of the State of Jammu and Kashmir, a privilege which is not enjoyed by the other States of the Union, thus, (i) No Proclamation of Emergency made by the President under Art. 352 on the ground of internal disturbance shall have effect in the State of Jammu & Kashmir, without the con­currence of the Government of the State, (ii) Similarly, no decision affecting the disposition of the State can be made by the Government of India, without the consent of the Government of the State, (iii) The Union shall have no power to suspend the Constitution of the State on the ground of failure to comply with the directions given by the Union under Art. 365.

In the event of a breakdown of the constitutional machinery as provided by the State Constitution, it is the Governor who shall have the power, with the concurrence of the President, to assume to himself all or any of the functions of the Government of the State, except those of the High Court, (iv) The Union shall have no power to make a Proclamation of Financial Emergency with respect to the State of Jammu and Kashmir under Art. 360 (v) Articles 356-357 relating to suspension of constitutional machinery have been extended to J & K by the Amendment Order of 1764.

  • Fundamental Rights and the Directive Principles:

The provisions of Part IV of the Constitution of India relating to the Directive Principles of State Policy do not apply to the State of Jammu & Kashmir. The provisions of Art. 19 are subject to special restrictions for a period of 25 years. Art. 19(1) (f) and 31(2) have not been omitted, so that the fundamental right to property is still guaranteed in this State.

  • Separate Constitution for the State:

While the Constitution for any of the other States of the Union of India is laid down in part VI of the Constitution of India, the State of Jammu & Kashmir has its own Constitution (made by a separate Constituent Assembly and promulgated in 1957).

  • Procedure for Amendment of State Constitution:

While an Act of Parliament is required for the amendment of any of the provisions of the Constitution of India the provisions of the State Constitution of Jammu & Kashmir (excepting those relating to the relationship of the State with the Union of India) may be amended by an Act of the Legislative Assembly of the State, passed by a majority of not less than two-thirds of its membership; but its such amendment seeks to affect the Governor or the Election Commission, it shall have no effect unless the law is reserved for the consideration of the President and receives his assent.

It is also to be noted that no amendment of the Constitution of India shall extend to Jammu & Kashmir unless it is so extended by an Order of the President under Art. 370(1).

  • Alteration of Area Boundary:

No alteration of the area of boundaries of this State can be made by Parliament without the consent of the Legislature of the State of J & K.

  • Other Jurisdictions:

By amendments of the Constitution Order, the jurisdictions of the comptroller and Auditor-General, of the Election Commission, and the Special Leave Jurisdiction of the Supreme Court have been ex­tended to the State of Jammu and Kashmir.

 

PROS AND CONS OF ARTICLE 370:

PROS:-

  1. Less pollution due to less industrialisation.
  2. Adequate land in the state which can be put to good and beneficial use for the state itself.
  3. Less competition for students of J&K as no other state’s students come to compete in state medical and engineering exams.
  4. Is a key point to secure Kashmir from invasion as it maintains the status of J&K with Union of India.
  5. Helps to maintains India’s claim over Kashmir in world’s eye as India has some documented proof.
  6. Maintains the inland quality because the state is not populated with people from different states.

 

CONS:-

Article 370 though has a fair number of pros on its side but the inevitable cons cannot be ignored at all.

  1. Denial of fundamental right to settle permanently and purchase property

Under Article 19 (1) (e) and (g) of our Constitution, it is fundamental right of the citizens of India to reside and settle permanently in any part of the country. But Article 370 deprives the citizens of India of the right to purchase property and settle permanently in Jammu and Kashmir but citizens of Jammu and Kashmir can buy property and settle in any province of India.

  1. Deprivation of the right to vote

The citizens of India cannot become the citizens of Jammu and Kashmir. Due to Article 370, they are deprived of their right to vote in the elections to the state assembly or municipal council or panchayats.

  1. Denial of Jobs

On account of Article 370, Indian citizens cannot get jobs in the state of Jammu and Kashmir. All the jobs in the state are reserved for the citizens of the state.

  1. Victimization of Hindu Immigrants – Supreme Court helpless:

On account of unholy partition of our holy Motherland, unfortunate Hindus were ousted from their ancestral homes in West Pakistan. A few thousand Hindu families migrated to Jammu and Kashmir and settled there. Though, fifty five years have elapsed since their migration, yet they, their children and even grand-children have not been granted citizenship on the ground that outsiders cannot settle permanently in the state on account of Article 370.

  1. Incapability to alter the boundaries of Kashmir

Under Article 3 of the Indian Constitution, the Parliament has the right to change the boundaries of any province, provided the President consults with the authorities of the concerned province before signing the bill. But, on account of Article 370, the Parliament of India cannot alter the boundaries of Jammu and Kashmir. For doing so, it has to seek approval from the Constituent Assembly of Jammu and Kashmir.

 

CONCLUSION:

The Article 370 is an internal arrangement which says that how relations between India and Jammu and Kashmir would be governed. Also in international relations, the most important way to substantiate your claim over a territory is to accumulate power. Our neighbour China had also captured some territory in J&K without any Instrument of Accession or any such article in constitution.

Therefore in most likelihood, even if Article 370 is deleted, it would only effect the internal relations between India and J&K and would not substantiate the claim of any foreign power over the state. However, the most common solution for any controversial problem in India is the status quo. So in this case also, government would prefer its time tested medicine of status quo in the foreseeable future. 

 

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