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Article 370 Of The Constitution Of India

Article 370 of the Indian Constitution gives special provision to the state of Jammu and Kashmir an autonomous status. The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions. It tells about the legislation and other powers vested in J&K as a state as an individual and in relation to India. Since Jammu and Kashmir presents a variant of the federal structure in which the Indian States were welded, the present study is expected to provide a perspective for the evolution of the federal frames which the founding fathers of the Constitution of India constructed.

In this study the researcher will look into these provisions mentioned by the government, the changes it has been through and how it affects the status of India as a Country in the whole. As it is said that even the moon has some blots, similarly all the prosperity, divinity and the blessedness of Kashmir has caught the evil eye.

The blood of the holy lake became a swamp of blood. It is mingled with the gore of humans who have perished in this valley of heaven. The thunder of clouds is replaced by the sounds of bomb blasts; pretty smiling faces with welcoming eyes are now terrorized and filled with grief. Why this bloodshed? Why this heaven has turned into a hell and a land of terror? Why this valley of flowers has turned into a valley of guns and death? Why is it happening?

Introduction
Kashmir - nature’s heritage, a sanctuary that has enchanted humans and been celebrated by mankind for its scenic class. It is a land which used to be an important center of Hinduism and later for Buddhism. It also has deep roots and recognition in the womb of golden history of Mahabharata. According to folk etymology, the name Kashmir means Desiccated land (from Sanskrit, Ka= Water and Shimeera= desiccate).[1]

Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions",[2] the state of Jammu & Kashmir has been accorded special status under Article 370. This means that all the provisions of the Constitution which are applicable to other states are not applicable to J&K. [3] Thus the State’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.[4]

370. Temporary provisions with respect to the State of Jammu and Kashmir.

  1. Notwithstanding anything contained in this Constitution:
    1. The provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;
    2. The power of Parliament to make laws for the said state shall be limited to:
      1. 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
         
      2. 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 purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State
    3. The provisions of article 1 and of this article shall apply in relation to that State;
    4. 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 (i) 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 (ii) 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[5]
As written in Article 1 of the Constitution of Jammu and Kashmir which states that the State of Jammu and Kashmir is and shall be an integral part of the Union of India. Article 5 states that the executive and legislative power of the State does not extend to matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India. These provisions cannot be amended. The constitution was adopted and enacted on 17 November 1956.[6]

Research Methodology
Statement Of Problem

The topic of Article 370 and its provisions has a very vast background. Documentation of many practices is varied as many different outlooks on the topic exist .This project deals with the detailed analysis of the implication of Article 370 of the Constitution of India. The material mentioned in this project has been derived from various other research papers, journals and other online documentation.

Objective
  • To enhance knowledge about history of article 370
  • To study the implication of article 370
  • To understand the current situation in Jammu & Kashmir
Methodology
Doctrinal methodology has been used in this project

History Of Article 370

After the lapse of British paramount, the State of Jammu and Kashmir became independent; it was free to accede to either of the Dominions, India and Pakistan, by signing an Instrument of Accession. Maharaja Hari Singh, the then ruler of Jammu and Kashmir acceded to the Dominion of India by signing an Instrument of Accession on 26th October, 1947.

Thus, the accession of Jammu and Kashmir was final, irrevocable and perfectly legal and thus Jammu and Kashmir Became an integral part of India. It may also be noted that between 15th August 1947 when the State of Jammu and Kashmir became sovereign upon the lapse of paramount and 26th October 1947 when Maharaja Hari Singh signed the Instrument of Accession, so called Azad Kashmir Forces with the support of Pakistan had attacked Kashmir with a view to force the Maharaja to accede to Pakistan.

The Maharaja was obliged to seek military help from India to defend the territory of his State. After he signed the Instrument of Accession, India acquired jurisdiction over the State and repelled the attack.[7]

Keeping in view the circumstances in which the State acceded to India, the Government of India assured the people of the State that an elected Constituent Assembly will frame a Constitution for the State and will determine the nature and extent of application of other provisions of the Indian Constitution over the State. Article 370 only incorporates these assurances. Thus, at the Commencement of the Constitution only two Articles namely Article 1 and Article 370 applied to the State. The application of other Articles to the State would be determined by the President in consultation with the State Government.

The President issued the Constitution (Application to Jammu and Kashmir) Order, 1950 in consultation with Government of the State of Jammu and Kashmir, specifying the matters with which the Union Parliament may legislate for the State. Thus, while remaining within the framework of Indian Constitution the Kashmir State virtually attained an autonomous status not enjoyed by any other state of the Republic of India.

However, the Constitution-makers envisaged the day when the need of the temporary provision would end and the Article 370 abrogated. But this step was to be taken not at the behests of any extraneous authority, not even at the demand of the Indian public opinion, however united or strong on the subject, but at the express wish of the people of Jammu and Kashmir.[8]

Implication Of Article 370

There has been a wave of revolutionary ideas among the youth and the intellectuals of the State in the past few years. The abrogation of section 370 is the new slogan with the argument that the provision feeds secessionist demands and has retarded growth in the State. Now the implications of the clauses and sub-clauses of this Article need to be analyzed and comprehended to gain a perspective on the role that J&K‟s special status has played in its social, economic and political development.[9]

The foremost implication of this Article is the legislative exception that it bestows upon the State of J&K. There are a number of legislations that do not apply to the State since consultation with the State Government failed or there was no concurrence. The Indian Penal Code, 1860, arguably the most comprehensive legislation on criminal law in India, also adopted by Burma, Sri Lanka, Malaysia, Singapore and Brunei operates in the entire territory of the Union of India except the J&K.

The Prevention of Corruption Act, 1988 the most effective contemporary statute under which corrupt politicians and government employees are brought to book for their offences is not applicable to J&K. The applicability of the Religious Institutions (Prevention of Misuse) Act, 1988, under which religious institutions are prohibited from permitting the promotion of any political activity or the storing of arms and ammunitions on its premises, does not extend to J&K. J&K is exempted from the application of the Delhi Special Police Establishment Act, 1946, the source of the establishment and powers of the Central Bureau of Investigation, the premier criminal investigative body of the country.[10]

Then, there are numerous legislations that are applicable to the State, but have been enforced in J&K in a modified form. Certain statutes have thus, been applied in a limited manner, defeating their basic objectives. The Commissions of Inquiry Act, 1952, which empowers the Central Government to set up an inquiry commission to look into any irregularity of public importance, is applicable to J&K, but 61 subjects in the State List, including prisons, hospitals and water supply, are exempted from its application. Again, the Protection of Human Rights Act, 1993 is excluded from its application with respect to the subjects enumerated in the State List.

The application of the Unlawful Activities (Prevention) Act, 1967 does not include within its ambit sections 153-A and 153-B of the Indian Penal Code, which are concerned with promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and imputations, assertions prejudicial to national integration respectively. Hence, this aspect of Article 370 indicates the degree of legal integration of the State with the rest of the country.

Then there are certain constitutional provisions that do not apply to the State of J&K or are applicable in a limited manner, as per the order of the President. The Constitution of India provides a framework for the functioning of country, with its varied provisions on the fundamental rights of citizens to the office of the President. It is the most honored Code of the country and the longest written Constitution in the world. However, the State of J&K does not fall entirely under the ambit of this book of provisions.

Article 31C, the provision that prohibits challenge on certain grounds to a law passed to effect any Directive Principle of State Policy, has been declared to be not applicable to J&K, and as a result any Central law on the Uniform Civil faces the possibility of being deemed invalid in the state. Article 172 which fixed the term of the State Legislatures as five years is not applicable to J&K, whose Constitution specifies the term as six years at variance with the rest of the country.

Excluding the application of Article 360, the provision dealing with the proclamation of a Financial Emergency, takes away the power of the Central Government to give directions to the State of J&K for maintaining financial propriety. Article 365, had it not been declared to be inapplicable, would have empowered the President to hold the refusal of the State of J&K to follow a direction of the Central Government as misdemeanor.

Then there are certain Constitutional provisions that operate in J&K, albeit in a modified form. The Supreme Court of India in its landmark judgment of Keshavananda Bharati v. State of Kerala15 held that the Preamble is a part of the basic structure of the Constitution. The word ‘secular’ was added to it by the 42nd Amendment in 1976, but it was meant to be omitted from application to J&K.

Another anomaly is that the voting right based on adult suffrage is guaranteed to every Indian citizen resident in J&K for election to the Lok Sabha, while the adult suffrage applies to only ‘permanent citizens’ of J&K for its State Legislative Assembly election as per their constitution. A very important consequence of Article 370 has been the isolation of the people of J&K from the rest of the country. Every state is said to be an integral part of the nation, but J&K

with its separate Constitution challenges the very significance of this statement. The entire population of the state has been bereaved of the economic development that the rest of the country has achieved. Private industries cannot transfer land in their own name and hence, the state has seen no industrialization, while rapid urbanization and the mushrooming of factories in other states has provided employment and raised the standard of living.

Financial legislations have constantly been prevented from being introduced in the state with the assistance of the farce called Article 370 and has prevented the concepts of gift tax, urban land ceiling, wealth tax etc. from making the powerful accountable to the people of the state, thus broadening the divide between the rich and the poor. Since no land can be owned by people who are not permanent residents of the state, the power elite who are the only ones with the capacity to invest in immovable property have cornered the land resources.

The abuse of Article 370 is perhaps the main reason why it should be abrogated, with the abuse leading to hopeless governance and breakdown of the social machinery. The immunity given to the J&K State from a number of Parliamentary laws operating in the rest of the country has been misused greatly by the powerful to deny citizens their rights. On 21st June, 2003, Mohan Lal, a rikshaw puller, became a victim of custodial death.

The responsibility for his torture and murder was sought to be avoided by the State by seeking immunity from the Protection of Human Rights Act, 1993. However, the National Human Rights Commission in a commendable order set aside the immunity and directed the J&K Government to pay Rs. 5 lakhs to the deceased’s mother for the police atrocity.[11]

However, there are various other evidences of such misuse of immunity that have not been redressed. India follows the Juvenile Justice (Care and Protection of Children) Act, 2000, but the State of J&K refuses to extend the applicability of this statute, while its juvenile justice system is still governed by the antiquated Jammu and Kashmir Juvenile Justice Act, 1997, thereby preventing the operation of the Ministry of Women and Child Development of the Government of India in the state for formulation and implementation of uniform child protection programmers as required by the UN Convention on the Rights of the Child.24A similar abuse is evidenced by the Jammu and Kashmir Right to Information Act, 2009 whereby the State Government is vested with more power as compared to the Central Act of 2005. The Domestic Violence Act, 2005 does not extend its application to the State of J&K, which has not enacted its own protective law for women in the domestic sphere.[12]

J&K has refused to enact laws that would extend the applicability of the 73rd and 74th Amendments to the Constitution that provide for reservation of seats for women in the Panchayats, thus preventing the women in the state from asserting the right that has become fundamental to the concept of Panchayati Raj all over the country.

Another apparent abuse is the denial of state citizenship to the thousands of minority Sikhs and Hindus who migrated from Pakistan in 1947 by quoting Section 6 of the Jammu & Kashmir State Constitution that seems to have set in stone the definition of permanent resident. These are not isolated examples. Cumulatively, these create the shape of a phenomenon in J&K – a phenomenon of human rights abuse under the garb of validity bestowed upon it by article 370.

Bibliography
Books:
  1. Bazaz, Prem Nath. (1978). Democracy through Intimidation and Terror: The Untold Story of Kashmir Politics. New Delhi: Heritage Publishers
  2. Edited by Gopal S. (1998), Selected works of Jawaharlal Nehru, Second Series, Vol. 19, Northamptonshire: Oxford University Press.
Articles
  1. http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf
  2. http://www.publishyourarticles.net/knowledge-hub/essay/an-essay-on-article-370-and-special-status-of-jammu-and-kashmir.html
  3. http://en.wikipedia.org/wiki/Article_370
End-Notes:
  1. http://en.wikipedia.org/wiki/Kashmir History of Kashmir
  2. http://www.ikashmir.net/history/index.html
  3. http://timesofindia.indiatimes.com/india/What-is-Article-370-Three-key-points/articleshow/35678708.cms
  4. http://shobhananair.com/?p=801
  5. http://en.wikipedia.org/wiki/Article_370
  6. http://en.wikipedia.org/wiki/Article_370
  7. http://darpanonline.org/web-photo/10_41.pdf
  8. http://darpanonline.org/web-photo/10_41.pdf
  9. http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf
  10. http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf
  11. http://en.wikipedia.org/wiki/Article_370
  12. http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf

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