On 5th August 2019, President of India in the exercise of the powers conferred by Clause (1) of Article 370 of the Constitution had issued the Constitution (Application to Jammu and Kashmir) Order, 2019. Through this, Government of India has made modifications in Article 370 itself (not revoked it).
With this, the Government of India has dramatically altered the relationship between the state of Jammu and Kashmir and the Indian Union.
- On October 17, 1949, Article 370 was added to the Indian constitution, as a ‘temporary provision’, which exempted Jammu & Kashmir, permitting it to draft its own Constitution and restricting the Indian Parliament’s legislative powers in the state.
- It was introduced into the draft constitution by N Gopalaswami Ayyangar as Article 306 A.
- Under Article 370: The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state,
- The J&K Constituent Assembly was dissolved after it drafted the state’s constitution. Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.
- Article 35A stems from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.
- Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
- It appears in Appendix I of the Constitution.
The key feature of Article 370 was that the Central laws passed by the Parliament did not automatically apply to the erstwhile State of J&K, and it was the right of the State Legislature to approve them by passing a parallel act.
- Article 370 is a constitutional provision that gave Jammu and Kashmir its special status.
- The provision was incorporated in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.
- As evident from the title of the Part, it was supposed to be a temporary provision and its applicability was projected to last till the formulation and adoption of the State’s constitution.
- It restricted the Parliament’s legislative powers with respect to the state of J&K.
Pandit Nehru, on the floor of Lok Sabha on 27th November 1963, said that Article 370 has been eroded and the process of gradual erosion is going on. A year later, the then Home Minister Gulzari Lal Nanda, again on the floor of Lok Sabha on 4 December 1964, said, Article 370 is a tunnel to take the Constitution of India to Jammu and Kashmir. He further said that in the end, only the shell will remain there and it will be bereft of its contents, and it will hardly make any difference whether it is kept or not.
These two statements by two tall leaders of the country speak volumes about the dilution of Article 370 of the Constitution of India just merely after one decade of its enactment. The process had right away started in the year 1950, with the issuance of the Constitutional Application Order 1950, and thereafter, a number of parlances took place between the Centre and the State leadership, which evolved into an agreement known as the Delhi Agreement of 1952, wherein a number of subjects apart from those in the Instrument of Accession were agreed to be made applicable to the State of J&K. Some of them are as under:
- Appointment of the head of State.
- Persons having domicile in the State of J&K shall be Citizens of India.
- Fundamental Rights
- Jurisdiction of Supreme Court
- National Flag
- Financial Integration
- Emergency Powers
Under Article 370 of the Constitution of India, the President had the power of issuing orders for the application of provisions of the Constitution of India with modifications, exceptions and amendments in the provisions. And this power has been upheld in several cases by the Supreme Court, e.g., in P. L. Lakhanpal vs the State of J&K.
As already said, for the application of other provisions of the Constitution of India to the State of J&K, the only mode available was the Constitutional Application Order. And the same was to be done with the consultation and concurrence of the State Government. The Presidential Orders, broadly speaking, deal with the following subject matters:
- Enhancing the jurisdiction of the Parliament to enact laws in the State of J&K out of the Union List.
- Laws relating to an increase or decrease in the area of the State.
- Making provisions for the return of the permanent residents of the State who migrated to the territories included in Pakistan under permit for settlement.
- Providing for constitutional protection to the laws relating to permanent residents of the state, their special rights and privileges, employment under Government, acquisition of immovable property, settlement in the State, scholarship.
- Earmarking the number of seats in the House of the people, excluding the area under the occupation of Pakistan.
- Provision for delimitation of Parliament Constituencies.
- Transfer of judges from the High Court of J&K or to the said Court.
- Exclusion of the State List.
- Provision as regards the decision affecting the disposition of the State of J&K.
- Acquisition and requisition of immovable property on behalf of and at the expense of the Union.
- Provision relating to the use of the official language of the Union and in the proceedings before the Supreme Court.
- Provisions for the proclamation of emergency.
- Provisions for non-application of the amendments carried out by the Parliament of India in the Constitution of India.
- Provision for Governor and the Election Commission.
In the year 1954, the Constitutional Application Order 1950 was renamed as the Constitutional Application Order 1954 and its issuance was the first infringement on the constitutional autonomy of the State of J&K. It culminated with the issuance of the Constitution (Application to J&K) Order, 2019. Article 370 itself was used to make it weak after remaining on the Constitution book for 70 years.
Facts on Article 370
Article 370 – Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution,
(a) The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) The power of Parliament to make laws for the said State shall be limited to
- Those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
- Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March 1948 ;
(c) The provisions of Article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph 1 of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph 2 of sub clause (b) of clause (1) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) 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.
Application of 370
- However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of Article 370, leaving the status of the provision on a cliffhanger.
- The provision was later held to have acquired permanent status by way of rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.
- This implied that to apply a central law to the state on subjects included in the Instrument of Accession, mere “consultation” with the state government is required.
- However, to apply a central legislation to matters other than defence, foreign affairs and communications, ”concurrence” of the state government was mandatory.
- The Constitution (Application to Jammu and Kashmir) Order, 2019 has replaced Presidential Order of 1954.
- Subsequently, the Jammu and Kashmir Reorganisation Bill, 2019, passed by Parliament divides the state of Jammu and Kashmir into two new Union Territories (UTs): Jammu & Kashmir, and Ladakh.
- This is the first time that a state has been converted into a UT.
- Of the six Lok Sabha seats currently with the state of Jammu and Kashmir, five will remain with the union territory of Jammu and Kashmir, while one will be allotted to Ladakh.
- The UT of Jammu and Kashmir will have an Assembly, like in Delhi and Puducherry.
- Instead of 29, India will now have 28 states. Kashmir will no longer have a Governor, rather a Lieutenant Governor like in Delhi or Puducherry.
- Status of J&K Union Territory
- J&K Assembly will have a five-year term, not six, as was the earlier case.
- Section 32 of the J&K 2019 Bill proposes that the Assembly can make laws on any subjects in the State and Concurrent lists except on state subjects relating to “public order” and “police”.
- This is similar to Article 239 A of the Constitution that is applicable to Union Territories of Puducherry and Delhi.
- However, by insertion of Article 239AA and by virtue of the 69th Constitutional Amendment, the Delhi Assembly cannot legislate on matters in entry 18 of the State List, i.e. land.
- In the case of J&K, the Assembly can make laws on land.
- The special status provided to J&K under Article 370 will be abolished.
- Jammu & Kashmir will no longer have the separate constitution, flag or anthem.
- The citizens of Jammu and Kashmir will not have dual citizenship.
- As the new union territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights enshrined in the Indian constitution.
- Article 360, which can be used to declare a Financial Emergency, will now also be applicable.
- All laws passed by Parliament will be applicable in Jammu and Kashmir, including the Right to Information Act and the Right to Education Act.
- The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir.
- Article 35A, which originates from the provisions of Article 370 stands null and void.
- Since Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights, the discriminatory provisions under Article 35A will now be unconstitutional.
The Need for Changes
- Article 370 was added in the Indian constitution to provide autonomy to J&K.
- However, it failed to address the well-being of Kashmiris who have now endured two generations of insurgency and violence.
- It contributed to the gap between Kashmir and the rest of the nation.
- International events
- The situation emerging in the western neighbourhood and the possible re-ascendance of the Taliban in Afghanistan call for greater attention and care.
- More so, the emerging geopolitical dynamics in Afghanistan and the resultant United States-Pakistan rapprochement could have potentially led to more heat on the Kashmir situation in the months ahead.
- Constitutional challenges
- Presidential order that sought to abrogate of Jammu and Kashmir’s special status, according to Article 370 (3) the President would require the recommendation of the constituent assembly of Jammu and Kashmir to make such a change.
- However, the 2019 Presidential order adds a sub-clause to Article 367, replacing the terms:
- “Constituent Assembly of Jammu and Kashmir” to mean “legislative Assembly of Jammu and Kashmir”.
- “Government of Jammu and Kashmir” to mean “Governor of Jammu and Kashmir acting on the aid and advice of the council of ministers”.
- The government sought to dilute the autonomy under Article 370 without bringing a Constitutional Amendment that would require a two-thirds majority in the Parliament.
- This provision is currently under challenge in the Supreme Court on the ground that it added article 35A in the Indian Constitution only through a Presidential Order.
- Conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred to the President by the State Assembly.
- In the reorganisation of the state, the Presidential order also requires the concurrence of the government of the state. However, since Jammu & Kashmir is currently under Governor’s rule, the Governor’s concurrence is deemed to be the government’s concurrence.
- Federalism issue:
- The Instrument of Accession was like a treaty between two sovereign countries that had decided to work together.
- The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured.
- In Santosh Kumar v. State of J&K & ors (2017), the SC said that due to historical reasons, Jammu and Kashmir had a special status.
- In SBI v Zaffar Ullah Nehru (2016), the SC held that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.
- The Instrument of Accession was like a treaty between two sovereign countries that had decided to work together.
Jammu and Kashmir Constitution
- Article 3-> Relationship of the State with the Union of India:- The State of Jammu and Kashmir is and shall be an integral part of the Union of India.
- In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is a categorical acknowledgement about the object of the J&K Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof.”
Constitution (Application to Jammu and Kashmir) Order, 2019
- (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.
(2) It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time.
- All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:-
To article 367, there shall be added the following clause, namely:-
“(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir-
(a) References to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
(d) in the proviso to clause (3) of Article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.
- Rise in Militancy: Article 370 was seen by Kashmiris as a marker of their separate identity and autonomy.
- There is a possibility of widespread protests and violence as a reaction to the dilution of Article 370.
- Terror elements in Pakistan would find Kashmir to be the most fertile ground for breeding terrorism.
- The unrest can affect the democratic progress that has been made so far.
- Out-maneuvering Pakistan: Pakistan used 370 to wage a proxy war, internationalise Kashmir, supporting terrorism, all that is gone now.
- A 10-year strategy for education, employment and employability should be deployed for uplifting Kashmir.
- The Gandhian path of non-violence and peace should be adopted to solve the legitimacy crisis in Kashmir.
- The government can mitigate the challenges emanating out of Action on article 370 by launching a comprehensive outreach programme to all Kashmiris.
- In this context, Atal Bihari Vajpayee’s version of Kashmiriyat, Insaniyat, Jamhooriyat (inclusivity culture of Kashmir, humanitarianism and democracy) for Kashmir solution, should become a cornerstone of the forces of reconciliation in the State.