Article 370 of Indian Constitution and Jammu and Kashmir


Accession of J&K to India—

With the end of the British paramountcy, the State of Jammu and Kashmir (J&K) became independent on 15 August 1947.

Initially its ruler, Maharaja Hari Singh, decided not to join India or Pakistan and thereby remain independent.

On 20 October 1947, the Azad Kashmir Forces supported by the Pakistan army attacked the frontiers of the state. Under this unusual and extraordinary political circumstance, the ruler of the state decided to accede the state to India.

Accordingly, the Instrument of Accession of Jammu and Kashmir to India was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 1947.

Under this, the state surrendered only three subjects (defence, external affairs and communications) to the Dominion of India.

Article 370 was incorporated in the Constitution of India.

It clearly states that the provisions with respect to the State of J&K are only temporary and not permanent.

It became operative on 17 November 1952.

 

[1] According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy.

[2] The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganised, shall not apply to the state of Jammu and Kashmir.

[3] In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult Dr. B. R. Ambedkar (then law minister) to prepare the draft of a suitable article to be included in the Constitution.

[4] Dr. B. R. Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370.

[5] Article 370 was eventually drafted by Gopalaswami Ayyangar.

[6] Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir.

[7] Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions.

[8] The original draft explained “the Government of the State means the person for the time being recognised 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 Maharaja’s Proclamation dated the fifth day of March, 1948.”

[9] On November 15, 1952, it was changed to “the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.”

[10] Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.

 

Present status of Jammu & Kashmir with India—

Jammu and Kashmir is a constituent state of the Indian Union and has its place in Part I and Schedule I of the Constitution of India (dealing with the Union and its Territory).

Parliament cannot make any law without the consent of the State Legislature relating to:

[a] Alteration of name and territories of the State.

[b] International treaty/agreement affecting the disposition of any part of the territory of the State.

Part VI of the Constitution of India (dealing with state governments) is not applicable to this state.

Parliament can make laws in relation to the state on most of the subjects enumerated in the Union List and on a good number of subjects enumerated in the Concurrent List.

The residuary power in respect of J&K rests with the State Government and not with the Union Government.

Further, the power to make laws of preventive detention in the state belongs to the state legislature. This means that the preventive detention laws made by the Parliament are not applicable to the state.

Part III (dealing with Fundamental Rights) is applicable to the state with some exceptions and conditions. The Fundamental Right to Property is still guaranteed in the state. Also, certain special rights are granted to the permanent residents of the state with regard to public employment, acquisition of immovable property, settlement and government scholarships.

Part IV (dealing with Directive Principles of State Policy) and Part IVA (dealing with Fundamental Duties) are not applicable to the state.

The Union can declare emergency in the state only in case of War or External Aggression.

A National Emergency declared on the ground of internal disturbance will not have effect in the state except with the concurrence of the state government.

The President has no power to declare a financial emergency in relation to the state.

The State Emergency (President’s Rule) is applicable to the state. However, this emergency can be imposed in the state on the ground of failure of the constitutional machinery under the provisions of state Constitution and not Indian Constitution.

In fact, two types of Emergencies can be declared in the state, namely, President’s Rule under the Indian Constitution and Governor’s Rule under the state Constitution.

In 1986, the President’s Rule was imposed in the state for the first time.

The Fifth Schedule pertaining to the administration and control of Scheduled Areas and Scheduled Tribes and the Sixth Schedule pertaining to the administration of Tribal Areas are not applicable to the State of J&K.

International treaty or agreement affecting the disposition of any part of the territory of the state can be made by the Centre only with the consent of the state legislature.

An amendment made to the Constitution of India does not apply to the state unless it is extended by a presidential order.

The special leave jurisdiction of the Supreme Court and the jurisdictions of the Election Commission and the comptroller and auditor general are applicable to the state.

The High Court of J&K can issue writs only for the enforcement of the fundamental rights and not for any other purpose.

By amendments of the Constitutional order, the jurisdiction of the Comptroller & Auditor General, Election Commission and the special leave jurisdiction of the Supreme Court have been extended to the State of J&K.

Acts passed by Indian Parliament have been extended to Jammu and Kashmir  over a period of time—

All India Services Act

Border Security Force Act

Central Vigilance Commission Act

Essential Commodities Act

Haj Committee Act

Income Tax Act

 

Some articles of Jammu & Kashmir Constitution—

Article 3 in part II of the Jammu & Kashmir constitution reads as, “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.”

Article 5 of the part II is about extent of “Executive” and “Legislative” powers of the state which tells that Jammu and Kashmir Legislative Assembly has executive and legislative power of all matters except those with respect to which Parliament of India has power to make laws for the State under the provisions of the Constitution of India. Sectors in which Government of India can make laws for Jammu and Kashmir includes Defense sector, Foreign affairs, Finance and Communication.

Article 147 of Part XII is about amendment of the J & K Constitution which states that, “No Bill shall be introduced or moved in State Legislative Assembly to amend or change above mentioned articles 3 and 5.