THE ACCOUNT OF ARTICLE 370 IN INDIA.

THE ACCOUNT OF ARTICLE 370 IN INDIA.

Author: Harshika Bhutda, a student at Symbiosis Law School, Hyderabad.

Article 370 is a constitutional provision that granted special status to Jammu and Kashmir. The clause was added to the Constitution’s Temporary, Transitional, and Special Provisions section (Part XXI). After representing India in the UN Security Council, Sir Narasimha Ayyangar Gopalaswami Ayyangar authored Article 370 of the Indian Constitution, which gave Jammu and Kashmir autonomy.  Its application was anticipated to endure until the creation and acceptance of the State’s constitution, as is clear from the Part’s title, and it was intended to be a transitory measure. It limited the legislative authority of the Parliament over the state of Jammu and Kashmir. The government and the judiciary have often asserted that they are long-term measures.  This article, which was added to the Constitution on October 17, 1949, allowed the State to create its own constitution and excluded it from the Indian Constitution, with the exception of Articles 1 and 370. Additionally, it limits the legislative authority of Parliament over Jammu and Kashmir. Numerous Indian statutes and laws are applicable to the entire country but do not apply to the State of Jammu & Kashmir. With the exception of the areas pertaining to communication, defence, foreign policy, and finance, this article assisted the State in gaining complete authority over 94 of the 97 items on the Union List.

On November 27, 1963, Pandit Nehru stated on the Lok Sabha floor that Article 370 had been gradually undermined and continued to do so. A year later, on December 4, 1964, on the floor of the Lok Sabha, the then-home minister Gulzari Lal Nanda declared, “Article 370 is a tunnel to take the Constitution of India to Jammu and Kashmir.” He said that whether it is retained or not won’t really matter in the end because all that would be left is the shell, empty of anything within.

Important aspects of the Indian Constitution’s Article 370

• The flag and constitution of the State of Jammu & Kashmir are distinct.
• Only the governor’s rule may be declared in a state; the president cannot impose his rule there. Article 360 prohibits the Indian government from announcing a financial emergency in the territory. In cases of foreign hostility or war, only a state of national emergency may be declared. 
• The Ranbir Penal Code is the state’s own criminal code. 
• The state’s residents are dual citizens.
• While Kashmir’s legislators served six years, other Indian state legislators serve five years terms.

One such channel that permits the state to apply the Constitution is Article 370. It has been noted that India has extended the Indian Constitution’s provisions to Jammu and Kashmir on at least 45 occasions by using Article 370.

PRESIDENTIAL ORDER

The President of India was authorized to issue orders under Article 370 of the Indian Constitution, allowing for the application of the Constitution’s provisions with modifications, exclusions, and revisions. Article 370 is the sole avenue via which India has virtually eliminated the impact of its special status with a single presidential decision. A greater number of the laws and modifications of the Constitution became applicable to the State of Jammu and Kashmir following the implementation of the Order in 1954. The first constitutional infringement on the sovereignty of the State of Jammu and Kashmir occurred in 1954 when the Constitutional Application Order 1950 was renamed the Constitutional Application Order 1954. The President’s order did not scrap Article 370 of the constitution; it only nullified the special status given to Jammu and Kashmir. Article 370 is still valid in the constitution.

Another factor contributing to its transient nature is the Instrument of Accession, which was only valid until a vote was conducted to determine the will of the people. Regarding Article 370 of the Constitution’s transitory character, the court has formed several conclusions. 

The Delhi High Court denied the plea in Kumari Vijaylaxmi Jha v. Union of India (2017), arguing that Article 370 was only meant to be a temporary measure and that its continuance would be a betrayal of the Constitution. In April 2018, the Supreme Court held in the same case that Article 370 is not a transitory provision, even though it is titled “temporary” in Part XXI of the Constitution.

The Supreme Court’s Constitution Bench also noted the ruling in the Prem Nath Kaul v. State of Jammu and Kashmir (1959) case and declared that Article 370’s effect and application must be evaluated in light of its terms and object, which are taken into account in light of the unique characteristics of the State and India’s constitutional relationship. The principal foundation of the Article’s temporary provision is the state’s Constituent Assembly’s determination of the nation’s relationship with the state. 

In the Sampat Prakash v. State of Jammu and Kashmir (1986) case, another panel of the Apex Court noted that Article 370 may be used even after the Constituent Assembly of Jammu and Kashmir was dissolved. Furthermore, Article 370 was not taken into consideration by the Supreme Court as a transitory measure. The five-judge bench ruled that because Article 370 has always been in effect, it is permanent in character. It further said that the Article would become a part of the fundamental framework and cannot be changed if it is a permanent component of our Constitution.

Article 370 remained in effect until the State’s constituent assembly disbanded on January 25, 1957, without proposing its abrogation or modification. Subsequent decisions by the Indian Supreme Court and the Jammu and Kashmir High Court established the provision’s permanent validity. This suggested that the state government would only need to be “consulted” for a central legislation to be applied to it on matters covered by the Instrument of Accession. However, “concurrence” of the state government was required to apply a central act to areas other than communications, foreign affairs, and defence.

Article 370 of the Indian Constitution became obsolete on August 5, 2019. On August 5, 2019, landlines were cut, hundreds of military were called in, the internet was shut down, and even politicians from Kashmir were put under house arrest. Locked within their houses, the Kashmiris were suddenly obliged to accept this choice. After President’s rule was imposed in Kashmir and the State Assembly of Jammu and Kashmir was dissolved, this decision was taken. This decision won’t be carried out until the Kashmiri populace wants to blend in with Indian culture.

 The Indian government has taken away Jammu and Kashmir’s special status. A new subclause 4(d) was added to Article 367, which is also an interpretation clause of the Constitution. This amendment provision states that “Legislative Assembly of the State” should be read in place of “Constituent Assembly” under Article 370(3). As a result, the J&K Assembly is now able to suggest that Article 370 be repealed. However, the fact that Jammu and Kashmir was also governed by the President presented another issue, thus Parliament had to make the recommendation in accordance with the recently amended Article 370 (3).  As a result, Article 370 of the Constitution is not in effect at the moment. This resolution, which was issued by the Home Minister, suggests that the President abandon Article 370. The President was able to announce that Article 370 is no longer in effect as a result. 

With the removal of Article 370, Jammu and Kashmir no longer has a constitution, flag, or national anthem, and its people no longer hold dual citizenship. All legal revisions passed by the parliament, such as the Right to Education and Information Acts, are currently followed by Jammu and Kashmir.

Kashmiris can work in the newly founded Indian enterprises and earn high money after Article 370 is eliminated. There will always be less crime if more jobs are created. If the Kashmiris sell their lands to the Indians on a lease basis, they will also profit monetarily. After article 370, Kashmiris will still have the ability to select the state administration, but their rights would be altered from what they’re entitled to today.

 There will eventually be greater political and social unrest in Kashmir as a result of the people’s partial acceptance of the decision.

With the abrogation of Article 370, Jammu & Kashmir is now completely protected by the Indian Constitution as well as all 890 Central laws. Following the deletion of Article 370, Jammu and Kashmir came to be regarded as a part of India in both letter and spirit. Article 370 of the Indian Constitution was seen as a transient and useless clause that need to be removed.