File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Article 370

Indian constitution is the supreme law of India. It was adopted by the Constituent Assembly on 26th November 1949 and came into force on 26th January 1950. It has a federal structure with certain unitary features. India is a unique and diverse country.

Article 370 gives the special status that has been given to the state of Jammu and Kashmir after it merged with India. The significance holds in our constitution and misunderstanding about this provision in the Constitution of India.

History Of Jammu And Kashmir

India and Pakistan conceded independence by the British rule. Both nations were to exist as independent nations. As to what part became India and what became Pakistan was decided by Mountbatten Plan in 1947. There were two main objects of this plan. Firstly to divide British India into two dominance and decide as which Princely states will be part of which dominance. British Parliament passed the Indian Parliament Act, 1947 to enact the Mountbatten Plan. The state of Jammu and Kashmir had then become an independent entity on 15th August 1947.

Later Azad Kashmir Forces, supported by Pakistan army, attacked the state of Jammu and Kashmir. They marched towards Srinagar to accumulate more local support. Jammu and Kashmir had a standstill treaty with Pakistan, which breached the agreement because of the invasion in Jammu and Kashmir.

Maharaja Hari Singh due to difficulties faced because of the Pakistani troops approached India for aid. India agreed with the ruler with the condition of inheriting Kashmir into the territory. Eventually, Jammu and Kashmir became an integral part of India by way of a treaty of accession. This instrument is a legal document that was accomplished by Maharaja Hari Singh, the sovereign of Jammu and Kashmir. The treaty was executed under the provisions of the Indian Independence Act, 1947. Hari Singh and Prime Minister Jawaharlal Nehru were the signatories of this treaty. Not only article 1 of the Indian Constitution express Jammu and Kashmir and its territory to be a constitutive part of the Union of India but also article 3 of the Constitution of Jammu and Kashmir.

Mohammed Ali Jinnah accused Nehru of forcing Hari Singh to sign the treaty of accession. Jawaharlal Nehru bought the matter in the United Nations. They declared Jammu and Kashmir to be a disrupted area and to solve the issue, asked the countries to have a plebiscite. A plebiscite is a voting wherein the citizens of Jammu and Kashmir could have voted as to for the place they wanted to be a part of. There were two pre-conditions to the voting. Both India and Pakistan were asked to remove their armed forces from Jammu and Kashmir, which none of them followed. Therefore, a plebiscite wasn't conducted.

After signing the Instrument of Accession, the new leader of Jammu and Kashmir was Sheikh Abdullah. He was representing may political issues of the population of Jammu and Kashmir. He uses to represent the majority of the population by his previous party name of All India Jammu and Kashmir Muslim Conference. Then the name of the party changed to National conference in which he used to represent the suppressed Classes of Jammu and Kashmir.

As per the treaty, however, only defence, external affairs and communications were to be handed over to the Indian government, while control over all other sectors was to be retained by the ruler, under the Jammu and Kashmir Constitution Act 1939. The state of Jammu and Kashmir reserved residuary powers, and the Instrument of Accession was not to be altered by any amendment of the Indian constitution unless accepted by the ruler of the state by a supplementary instrument.

Maharaja did not pledge himself to recognise any future Indian Constitution for Jammu and Kashmir. However, he retained the right to enter into agreements with the Government of India under any future Indian Constitution. The sovereignty of the ruler over the state and the validity of any law enforced in the state was not to be affected by the treaty of accession. Hence, Article 370 was established in the constitution to conserve specified terms.

This matter was put in front of the Constituent Assembly of India, which was dealing with the task of framing the Indian Constitution. After much deliberation, Article 370 was inserted in the constitution's twenty-first part that proclaimed it to be “Temporary, Transitional and Special Provision”.

Article 370 provided for a special status to Jammu and Kashmir, which was granted to it through the Presidential Order of 1954. Article 370 counters the provisions of Article 238, which was repealed by the 7th Constitutional Amendment in 1956 post 'part B' states were removed as they were included as 'states'.

The Drafting Committee at that time expressed the provisions of drafting the constitution of all states would accept List 1 and 2 of the seventh schedule, all the provisions relating to fundamental rights and the provisions concerning High Court and Supreme Court. Whereas, considering the State of Jammu and Kashmir, the government decided that the state should continue to work on the accosting basis until brought at the same level with the other states.

Gopalaswami Ayyangar, member of cabinet in the Ministry of Railways and Transport, who was was a confidante of Prime Minister Jawaharlal Nehru and also a former aid of Maharaja. He was also a member of the drafting committee of the Indian Constitution appointed on 29th August 1947 which consisted of seven members. The seven members in the constituent assembly were Alladi Krishnaswami Ayyar, N. Gopalaswami, B.R. Ambedkar, K.M Munshi, Mohammad Saadulla, B.L. Mitter and D.P. Khaitan. Ayyangar drafted Article 370 in the India Constitution, which granted the special status to Jammu and Kashmir. He, later on, represented India in the delegation of United Nations on the Kashmir dispute.

Article 370 Explained

Article 370, under the Constitution of India, gives special status to the state of Jammu and Kashmir.
It grants Jammu and Kashmir to have a constitution of its own. The centre has to take the concurrence of the state's constituent assembly before passing any legislation or an act on the state. The boundary of the state and name cannot be altered as it can be altered in rest states of India under Article 3 of the Indian Constitution.

According to Article 370, the state is exempted from any other laws of the Indian Constitution, which are provided for the governance of the states. In case the centre wants to apply constitutional provisions or any of the union powers in the state, then the centre should have the prior agreement of the state of Jammy and Kashmir. Also, the constituent assembly of the state has to give its consent and recommend the decision.

The authority of the state government to give concurrence can happen only when the constituent assembly is in accord with it. Though the President is empowered to make an order to amend or abrogate the article, it still needs the consent of the state's constituent assembly.

The amendment concerning Article 368 will only be applicable when it is applied by the President's order. In Article 370(3), the President may declare Article 370 to be inoperative. However, the President requires the consent of the constituent assembly of the state. Thereby, the Parliament cannot exercise the power of Article 368 to amend or withdraw Article 370 of the constitution of India. It is provided that the article can only be changed or removed by the recommendation given by the state's constituent assembly.

The power of Article 368 extends to amend the provision listed in the change in any of the lists of the seventh schedule. The constitution of India, according to the Citizenship act, have single citizenship, but the residents of Jammu and Kashmir have dual citizenship.

Whether Article 370 Can Be Abrogated?

Article 370 was incorporated in the Indian Constitution to regulate the relationship between Jammu and Kashmir and the rest of India. It has been a part of the provision characterised as Temporary Provision. Any matter, which has to be applied to the state other than what is mentioned in the article, requires the concurrence of the State Government. Under Article 370, under the 3rd clause, the President can declare the article to be inoperative only with the recommendation made by the state's constituent assembly.

In 1957, the state's constituent assembly dissolved without making any recommendations under Article 370 (3). The Supreme Court of India has ruled in the case of State Bank of India v. Santosh Gupta and another, and the case of Sampat Prakash vs State Of Jammu & Kashmir & Another that Article 370 has gained and is a permanent provision. In case, the article is considered to be temporary then the state of Jammu and Kashmir and the rest of India share a temporary relationship, and the abrogation of the article would take Kashmir's position back as it was in 1947.

To empower the enactment of the Indian constitution in the state of Jammu and Kashmir, the Presidential declaration would have been the way but only with the consent of the state's constituent assembly, which is the absolute authority. In this case, as there was no constituent assembly, then it should have been elected. Since there wasn't any constituent assembly, one should have elected and therefore made on behalf of Jammu and Kashmir.

Abrogation Of Article 370

On 5th August 2019, provisions of Article 370 abrogated through a presidential order. President Ram Nath Kovind had made a declaration for the abrogation of the provisions of Article 370 of the Indian Constitution, which gave special status to Jammu and Kashmir. This order passed after both the houses of Parliament passed a resolution in this regard.

The provision for the removal of Article 370 by Presidential order, has been mentioned in Article 370(3). However, the order requires the concurrence of the state's constituent assembly. Whereas, while Article 370 was in the process of revocation, all the democratically elected politicians, Omar Abdullah and Mehbooba Mufti were put on house arrest and their communication to the world was disconnected.

In 1954, Dr Rajendra Prasad issued a Presidential order, The Constitution (Application to Jammu and Kashmir) order 1954. Regarding this order, Article 35A of the Indian Constitution and Jammu and Kashmir Constitution came into existence.

On 5th August 2019, President Ram Nath Kovind used his power on clause 1 of article 370 and issued a Presidential around, The Constitution (Application to Jammu and Kashmir) Order 2019. This order succeeds the order of 1954, and at this moment the presidential order of 1954 along with article 35A of the Indian Constitution and Jammu and Kashmir Constitution seized to exit.

Hereafter, Home Minister, Amit Shah proposed two resolutions. He is firstly rendering article 370 inoperative because it is in discriminatory. Secondly, he proposed the Jammu and Kashmir Reorganisation Bill. He claimed that article 370 had apposed the democracy in Jammu and Kashmir, also hampers the development of the state. He expressed in the state of Jammu and Kashmir, Aayushman Bharat Scheme is applicable, but why would any doctor go there, when he is already aware of the limitations that were going to be imposed over him.

Modi Government first amended Article 367. This article of the Indian Constitution is the interpretation proviso of the constitution itself. The Constitution (Application to Jammu and Kashmir) Order 2019, clause 4 of article 367 declares that the Constituent Assembly of the State in Article 370 (3) shall be read as 'Legislative Assembly of the State'.

The procedure established under the constitution expresses that this particular amendment requires the appreciation of 2/3rd members of the ParliamentParliament and 50% ratification of the assembly. A presidential order amended which is a violation of constitution provided provisions. The Supreme Court has not explicitly mentioned any standard on the amending powers of the Parliament.

The state of Jammu and Kashmir does not have a constituent assembly. The assembly was present and had aimed at drafting the constitution of Jammu and Kashmir in the year 1956 and as a result of this was dissolved after approving the constitution.

As there was no state's constituent assembly, the government at this moment consulted the state governor. State governor is a representative of the centre who as a formal head of the state reports to the centre. Consequently, he has not been elected by the citizens. Therefore, Parliament substituting the state assembly that has been dissolved since the drafting of Article 370 with the state governor violates the constitution of India.

Article 370 can only be revoked through a process wherein the concurrence and the decision of the constituent assembly has been expressed. As recognised in Article 3 of the Indian Constitution, consent of the state assembly shall be taken by the President before recommending for altering the shape of the state. It has been discovered that no consultation was taken, making the decision unconstitutional.

The second resolution passed by The Constitution (Application to Jammu and Kashmir) Order 2019, was the Jammu and Kashmir Recognition Bill which states that the territory of Ladakh including Kargil and Leh under section 3 and Jammu and Kashmir in section 4 are two separate territories. The union territory of Ladakh will be without legislature body, whereas Kashmir's will be with the legislature.

Conclusion
Various impacts of removal of Article 35A and 370 is that in place of dual citizenship, now people of Jammu and Kashmir will have single citizenship, special status and power are have been removed, they have no separate flag only tricolour flag will be there, instead of the separate constitution only Indian constitution will be applicable. Woman citizens can marry any state or non-state man without losing property rights, the prohibition against minorities and other classes has also been removed.

The state of Jammu and Kashmir and the rest of India shared a constitutional relationship by Article 370 of the Indian Constitution. This article was the absolute principle for the description of the constitution applied in the state. Wherein the relationship between them will completely change. The abrogation of the article has hampered the peace of the state, which was already a place of conflicts and militancy. Article 35A also abrogated because Article 370 got revoked. Therefore now, citizens of India are allowed to purchase land and settle permanently in the state. The revocation of the article will have an impact on the culture and politics of Jammu and Kashmir.

It is a laid down the procedure in the constitution itself that the president shall not take such a decision regarding the abrogation of Article 370 unless there are a recommendation and consent to this effect from the state's constituent assembly. The assembly's agenda was fulfilled in 1956 when they drafted the Constitution. The absolute principle was inherited then and there. The centre's action expresses an immoral, illegal and unethical use of powers and walking over the Indian constitution.  

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Constitution of India-Freedom of speech ...

Titile

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Dec...

Types of Writs In Indian Constitution

Titile

The supreme court, and High courts have power to issue writs in the nature of habeas corpus , quo...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly