CONSTITUTIONAL HISTORY OF ARTICLE 370

Authors:

Bhavya Venkatachalam, Ansal University

Kavya Murugesan, SOEL

Mansi Bagh,Gitam School of Law, Gitam University


Editor:

Meghaa G., TNNLU

Introduction

India on August 5th 2019 declared that all provisions of Constitution of India shall also apply to State of Jammu & Kashmir, vide “The Constitution (Application to Jammu & Kashmir) Order, 2019. Prior to that Jammu & Kashmir (hereinafter referred as “J&K”) enjoys a special status by the Article 370 which provides the state to have its own constitution.


Article 370

This Article was drafted by then Union Minister Gopalaswami Ayyanagar[1]. Article 370 was the protected arrangement through which the extraordinary status of Kashmir was verifiably held under the Indian Constitution. The Article permitted the express measure of self-governance. It was drafted in Part XXI as “Temporary and Transitional and Special power”.

Background:

Maharaja Hari Singh, the ruler of Princely state of J&K, through vide 1927 and 1932 notifications, made a law for the State subjects and their rights. The importance of Article 370 came into existence after separation of the two nations of India and Pakistan.

Later by October 1947, through “Instrument of Accession” the state of J&K merged with the Union of India (hereinafter referred as “UOI”). By this instrument the state surrendered Defense, External affairs and Communication to the UOI[2]. It was pledged that “the People of the State would determine the constitution of the State”.

In 1948, Maharaja appointed Sheik Abdullah as Prime Minster of the State. Along with other three members, Sheik Abdullah negotiated the special status of J&K and subsequently the Article 370 was incorporated.[3]


Article 35A

Article 35A is a distinct provision in Indian Constitution. It is unique because it is not seen in the main body of the Constitution followed by Article 35, rather it is provided in Annexure I of Constitution within the text of Presidential Order, 1954. This provision is solely for the benefit of J&K. It provides the state to define Permanent Residents of Jammu & Kashmir and also to provide them with special rights and privileges.

Background:

After formulation of Art.370, in 1952 by the Delhi Agreement, the Government of the State and the UOI while formulating extension of Indian citizenship to the residents, also decided that the State of J&K will still have the right over its subjects (referred to as Permanent Residents).

After formulating Art.370, which provides special status to J&K, Article 370(1)(d) provides “Such of the other provision of this constitution shall apply in relation to that state subject to such exceptions as the President may by order specify”[4].

Based on this provision, Article 35A was adopted vide Presidential order “The Constitution (Application to Jammu and Kashmir) Order, 1954” which was issued by the then President Rajendra Prasad.

Article 35A provides that only Permanent Residents have rights with respect to,

1. Employment provided under the State of J&K

2. Acquiring immovable property and Settlement in the State of J&K

3. Right to scholarship and any other forms as the State government may provide.[5]


Current Relationship Between J&K And The Union

The ‘Kashmir issues’, a major burning topic between India and Pakistan, which has resulted in the loss and displacement of many lives, needs to be solved but its end is pending for 60 years of Independence. The Constitution [Application to Jammu & Kashmir] Order, 1954 was the basic order that, has amended & modified from time to time, and regulated the constitutional position of the State of J&K and its relationship with the UOI[6]. Their current relationship post many modifications stands as follows,

Ø J&K is a constituent state of the Indian Union & has its place in Part I (Union & its Territory). Without the consent of its Legislature, the Union cannot change its name, area or boundary.

Ø The State of J&K has its own Constitution, administered by itself. Hence, Part VI of the Constitution of India (State governments) is not applicable to J&K. The very definition of ‘State’ under the Part VI does not include J&K.

Ø Parliament can make laws related to J&K on major subjects enumerated through the Union and Concurrent Lists. Also, the residuary power belongs to the State Legislatures except in few areas such as prevention of activities which involved the terrorist acts, questioning or disrupting the sovereignty & territorial integrity of India & causing insults to the National Flag, National Anthem & the Constitution of India.

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

Ø Part III (Fundamental Rights) is applicable to J&K with some certain measurement of exceptions & conditions such as The Fundamental Right to Property which is still guaranteed to the State in addition to special privileges.

Ø Part IV (Directive Principles of State Policy) and Part IVA (Fundamental Duties) are not applicable to J&K.[7]

Ø A National Emergency declared on ground of internal disturbance will not have effect on J&K except with concurrence with the State Government.

Ø The President has no power to declare a financial emergence or to suspend the Constitution of the State on the ground of failure to comply with the directions by him.

Ø The State Emergency (President’s Rule) is applicable to State. However, emergency can be imposed on the ground of failure of the constitutional machinery only under the provision of State Constitution.

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

Ø An amendment to the Constitution of India can only apply to J&K if it is extended by a Presidential order.

Ø Official language provisions are applicable to J&K only in so far as they relate to official language of the Union, the official language of inter-state & Centre-state communications & language of the Supreme Court proceedings.

Ø The Fifth Schedule (Administration & control of schedule areas & scheduled tribes) and the Sixth Schedule(Administration of tribal areas) do not apply this state.

Ø The special leave jurisdiction of the Supreme Court, the jurisdictions of the Election Commission and the Comptroller & Auditor general are applicable to J&K.

Ø The High Court of J&K can be issue writs only for the enforcement of the fundamental rights.

Ø Part II provisions regarding the denial of citizenship rights of migrants to Pakistan are not applicable to the permanent residents of J&K, who after having so migrated to Pakistan return to the state for resettlement. Every such person is deemed to be a citizen of India.


Landmark Cases On Special Status:

Premnath Kaul vs State of Jammu & Kashmir[8]

This case was concerned with the The Big Landed estates Abolition Act, 1950, enacted by Yuvraj Karan Singh (son of Hari Singh). The challenge was regarding the competency of Karan Sign to enact the law, with respect to his legislative powers. The Supreme Court held that, the J&K Maharaja’s plenary legislative power is not limited by Article 370. Thus, Supreme Court held that, “Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeed”.

State Bank of India vs Santosh Gupta & Anr. Etc[9]

In this case, the High court of J&K stated that the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) are not applied to State of J&K.

However, the Supreme Court then held that Art.370 does not limit Parliament power to enact laws since the Indian Constitution applies to J&K as well, thus by setting aside the judgment of High Court.

[1] Did you know about TN man who drafted Art 370?,THE INDIAN EXPRESS, (July 09,2020, 03:30PM), https://www.newindianexpress.com/nation/2019/aug/05/do-you-know-about-the-tamil-nadu-man-who-drafted-article-370-2014452.html [2] Manak Goel, Historical Background on Article 370 of Indian Constitution, LEGAL DESIRE (July 09, 2020, 05:15PM), https://legaldesire.com/historical-background-of-article-370-of-constitution-of-india/ [3] What is Article 370, BUSINESS STANDARDS,(July 09,2020,04:30PM), https://www.business-standard.com/about/what-is-article-370 [4] G.Rango Rao, Article 35A of the Constitution-An overview, No.43/RN/Ref/October/2017 [5] Aditya Sharma, Legal History of Article 370 and 35A and Current Status, LEGALSERVICES INDIA,(July 09,2020,07:30PM),http://www.legalserviceindia.com/legal/article-863-legal-history-of-article-370-and-35a-and-current-status.html. [6] M.LAKSHMIKANTH, INDIAN POLITY, (5th edition,Mc Graw Hill education,2017). [7] Ibid. [8] AIR 749, 1959 SCR Supl. (2) 270 [9] Civil Appeal No.12237-12238 of 2016

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