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Article 370 of the Constitution of India
Article 370 of the Indian constitution was an article that gave special status to the state of Jammu and Kashmir. The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.[1] 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.[2][3]
This article along with Article 35(A) defined that the J&K state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to resident of other Indian states. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.[4]
Purpose
The state of Jammu & 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. They were also 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. They accepted the Constitution of India as their own constitution. 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.[8]
In the case of Jammu and Kashmir, the representatives to the Constituent Assembly[9]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.[10] 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.[11][12][13][3]
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Analysis
Presidential orders
In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir made a series of orders.
Presidential order of 1950
The Presidential order of 1950, officially The Constitution (Application to Jammu and Kashmir) Order, 1950, came into force on 26 January 1950 contemporaneously with the Constitution of India. It specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of Accession as required by the clause b(i) of the Article 370.
Thirty eight subjects from the Union List were mentioned as matters on which the Union legislature could make laws for the State. Certain articles in ten of the twenty-two parts of the Indian Constitution were extended to Jammu and Kashmir, with modifications and exceptions as agreed by the state government.[22]
This order was superseded by the Presidential order of 1954.
Presidential order of 1952
The Presidential order of 1952 was issued on 15 November 1952, at the request of the state government. It amended the Article 370, replacing the phrase "recognised by the President as the Maharaja of Jammu and Kashmir" by "recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". The amendment represented the abolition of the monarchy of Jammu and Kashmir.
Background: The Constituent Assembly of Jammu and Kashmir was elected in 1951 and convened on 31 October 1951. The Basic Principles committee of the Constituent Assembly recommended the abolition of the monarchy, which was unanimously approved by the Assembly on 12 June 1952. In the same month, the Hindu-dominated Jammu Praja Parishad submitted a memorandum to the President of India demanding the full application of the Indian Constitution to the State. The Government of India summoned a delegation from Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the State. After discussions, the 1952 Delhi Agreement was reached.[23]
The State's prime minister Sheikh Abdullahwas slow to implement the provisions of the Delhi Agreement. However, in August 1952, the State Constituent Assembly adopted a resolution abolishing the monarchy and replacing the position by an elected Head of State (called Sadar-i-Riyasat). Despite reservations on this piecemeal approach to adopting provisions, the Central Government acquiesced, leading to the Presidential Order of 1952. The Legislative Assembly elected Karan Singh, who was already acting as the Prince Regent, as the new Sadar-i-Riyasat.[24][25]
Presidential order of 1954
The Presidential order of 1954, officially The Constitution (Application to Jammu and Kashmir) Order, 1954 came into force on 14 May 1954. Issued with the agreement of the State's Constituent Assembly, it was a comprehensive order seeking to implement the 1952 Delhi Agreement.[26] Arguably, it went further than the Delhi Agreement in some respects.[27]
- Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state subjects'). Simultaneously, the Article 35A was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment.
- The fundamental rights of the Indian constitution were extended to the state. However, the State Legislature was empowered to legislate on preventive detention for the purpose of internal security. The State's land reform legislation (which acquired land without compensation) was also protected.
- The jurisdiction of the Supreme Court of India was extended to the State.
- The Central Government was given power to declare national emergency in the event of external aggression. However, its power to do so for internal disturbances could be exercised only with the concurrence of the State Government.
In addition, the following provisions which were not previously decided in the Delhi Agreement were also implemented:
- Financial relations between the Centre and the State were placed on the same footing as the other States. The State's custom duties were abolished.
- Decisions affecting the disposition of the State could be made by the Central Government, but only with the consent of the State Government.
Background: The State Government's decision to abolish the monarchy led to increased agitation by the Jammu Praja Parishad, which found support among the Ladakhi Buddhists and the Hindu parties of India.[30] In response, Sheikh Abdullah started questioning the value of Kashmir's accession to India, leading to a loss of support among his Cabinet members. On 8 August 1953, Sheikh Abdullah was dismissed from the post of prime minister by the Sadar-i-Riyasat Karan Singh and his erstwhile deputy Bakshi Ghulam Mohammadwas appointed in his place. Abdullah and several of his colleagues were arrested and put in prison.[31][32]
The purged Constituent Assembly, with 60 of the original 75 members, unanimously adopted on 6 February 1954, the recommendations of its Basic Principles Committee and the Advisory Committee on Fundamental Rights and Citizenship.[33]According to the Basic Principles Committee:
The Presidential order of 1954 was issued based on these recommendations.[33]
Further presidential orders
In addition to these original orders, forty seven Presidential orders have been issued between 11 February 1956 and 19 February 1994, making various other provisions of the Constitution of India applicable to Jammu and Kashmir. All these orders were issued with the 'concurrence of the Government of the State' without any Constituent Assembly.[34] The effect of these orders has been to extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India.[35] All these orders have been issued as amendments to the Presidential Order of 1954, rather than as replacements to it, presumably because their constitutionality was in doubt.[36]
Autonomy of Jammu and Kashmir: Structure and limitations
Applicability of the Indian law to Jammu and Kashmir
Constitution of Jammu and Kashmir
Implications
Calls for abrogation
2019 actions by the Union government
See also
Notes
- ^ Article 238 was repealed by the 7th Amendment in 1956.
- ^ The explanation originally read, "For the purpose of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmiracting 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;" This was changed via Ministry of Law order No. C.O. dated 15 November 1952 stating, "In exercise of the powers conferred by Article 370 the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day of November, 1952, the said Article 370 shall be operative with the modification that for the Explanation in Cl. (1) thereof, the following explanation is substituted namely...[Explanation follows]"
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