– An article by Lavanya Goinka
Article 370 of the Indian Constitution is a temporary provision that gives the state of Jammu and Kashmir unique status. This Article is temporary in the sense that the Jammu and Kashmir Constituent Assembly had the authority to change, eliminate, or maintain it, and it was also only regarded temporary until a plebiscite was performed to determine public opinion. However, there has recently been a lot of discussion about this Article’s temporary status. The government and judiciary have asserted it to be permanent provisions on numerous times. As a result, the current article focuses on the history of Article 370 as well as its current status under the Indian Constitution.
Brief about the article
Article 370 of the Constitution establishes the state’s autonomy. The transitory provision of this Article is drawn from Part XXI of the Constitution, which accords unique status to the state of Jammu and Kashmir under the heading “Temporary, Transitional, and Special Provisions.” On October 17, 1949, this article was added to the Constitution, exempting the state from the Indian Constitution save for Articles 1 and 370, and allowing the state to draught its own constitution. In the case of Jammu & Kashmir, it also limits Parliament’s legislative abilities. Many Indian laws and statutes apply to the entire country but not to the state of Jammu and Kashmir.
Except in terms of defence, foreign affairs, finance, and communication, this Article allowed the State to have complete power over 94 of the 97 items on the Union List. However, because each state has its own set of laws, the Parliament must seek State government consent before implementing any of the above 94 things. Citizenship, ownership, and Fundamental Rights were all governed by different laws and rules in the state than they were in the union. As a result, any Indian person who is not a permanent resident of Jammu and Kashmir is unable to purchase property in the state.
Salient Features:
· Except in subjects relating to military, foreign affairs, finance, and communication, this Article allowed the State to have complete control over 94 of the 97 items on the Union List.
· Due to the fact that each state has its own set of laws, the Parliament must seek consent from the state government before implementing any of the 94 items listed above.
· Citizenship, ownership, and Fundamental Rights were governed by different laws and rules in the state than they were in the union.
· As a result, any Indian citizen who is not a permanent resident of Jammu and Kashmir will be unable to purchase property there.
History of the Article
Following India’s independence in 1947, Maharaja Hari Singh of Jammu and Kashmir declared independence from both India and Pakistan. However, following this pronouncement, Pakistan launched an unofficial battle to liberate the province from Hindu authority in areas where Muslims predominate. When Maharaja Hari Singh was unable to protect his kingdom, he sought assistance from the Indian government. The Indian government was willing to assist on the condition that Kashmir join India. As a result, in October 1947, both sides signed the Instrument of Accession. This accession treaty could not be altered without the approval of the state, and it also specifically secured the right to correct the application of any subsequent Indian Constitution in its territory.
Along with signing the Instrument of Accession, the State of J&K witnessed a number of significant events, including the ruler’s proclamations in 1948 and 1949, the establishment of popular government in Jammu and Kashmir, the presence of representatives from J&K in the Constituent Assembly of India, and debates on Article 370.
The construction of a Constituent Assembly for J&K to enact its Constitution was plainly examined by the ruler’s proclamations in March 1948 and November 1949. These proclamations stated that the Indian Constitution will most likely circulate, and that it would temporarily apply to J&K in order for India to control its constitutional relationship with the state of J&K. It was also decreed that the State’s Constitution would take precedence over all other provisions as soon as it took effect. As a result, Article 370 was enacted on January 26, 1950, for the temporary regulation of India’s constitutional relationship with the state of Jammu and Kashmir. The attribute of temporary character simply implies that it will control the relationship between the central government and Jammu and Kashmir until the Constituent Assembly of Jammu and Kashmir enacts the Jammu and Kashmir Constitution.
Jammu and Kashmir’s constitution was adopted on November 17, 1956, and went into force on January 26, 1957. It was the country’s sole state with its own constitution and a unique standing in comparison to the other Indian states. During the interregnum, however, Article 370 and its provisions continued to control the relationship between the state and the central. It should also be highlighted that Article 370 does not create the Constituent Assembly of J&K; rather, it recognises the importance of the Constituent Assembly as a representation of the desire of the people of Kashmir and its unique position.
Importance of the Article 370 for the Indian Union
Only two articles in the Indian Constitution have provisions that apply to Jammu & Kashmir. The state of Jammu and Kashmir is included in the list of states in Article 1. One such tunnel is Article 370, which allows the Constitution to be applied in the state. It has been noted that India has invoked Article 370 to extend the laws of the Indian Constitution to Jammu and Kashmir at least 45 times. Article 370 is the only option for India to effectively nullify the effect of the state’s special status with a single Presidential decree. More of the complete Constitution, its articles, and amendments were applicable to the State of Jammu and Kashmir after the implementation of Order in 1954. 94 out of 97 Union List items were applicable in the state, 26 out of 27 Concurrent List items were extended to the state, and 260 out of 395 Articles were extended to the state, along with 7 out of 12 Schedules.
Despite the President’s lack of such power, the Central government has used Article 370 to change the articles of the Jammu and Kashmir Constitution. Article 249 of the Constitution, which gives Parliament the jurisdiction to enact laws on State List entries, was applied to the state only on the Governor’s recommendations and without any Assembly resolution.
Temporary character of the Article 370
Article 370 has a distinct personality. The state government must be consulted on any matter relating to the implementation of central law in the State of Jammu and Kashmir on the subjects included in the Instrument of Accession. In some cases, however, the State Government’s approval is required. This results in significant distinctions, as in the former scenario, there is an initial conversation, whilst in the later case, direct acceptance from the other party, the state government, is required.
Article 370 of the Constitution is found in Part XXI. This article is temporary in the sense that the Jammu and Kashmir Constituent Assembly has the authority to change, delete, or preserve it. However, the Jammu and Kashmir Constituent Assembly, in its wisdom, opted to keep it. Another explanation for its transient nature is the Instrument of Accession, which was only temporary until a vote was undertaken to determine popular opinion. The court has expressed some views on the transitory status of Article 370 of the Constitution.
The Delhi High Court dismissed the plea in Kumari Vijaylaxmi Jha v. Union of India (2017), holding that Article 370 was a temporary measure and that continuing it was a violation of the Constitution. In the same case, the Supreme Court ruled in April 2018 that Article 370 is not a temporary provision, despite the designation “temporary” under Part XXI of the Constitution.
The Supreme Court’s Constitution Bench also cited the case of Prem Nath Kaul v. State of Jammu and Kashmir (1959), stating that the effect and application of Article 370 must be judged in light of its object and terms, which must be considered in light of the unique features of the State-India constitutional relationship. The interim provision under the Article’s basic premise is that the state’s Constituent Assembly will establish the connection between the state and the country.
In the case of Sampat Prakash v. State of Jammu and Kashmir (1986), a different bench of the Supreme Court held that Article 370 can be invoked even after the Constituent Assembly of Jammu and Kashmir had been dissolved. In addition, the Supreme Court ruled that Article 370 is not a temporary clause. The five-judge panel decided that Article 370 has never been curtailed from being in effect, and so it is permanent. It went on to say that if the Article is a permanent part of our Constitution, it cannot be changed and will become part of the fundamental framework. According to Article 368, the Parliament has the authority to amend any article of the Constitution, but such amendments must not destroy the Constitution or change any of its fundamental characteristics.
Article 370 sparked a slew of diametrically opposed viewpoints. On the one hand, the Article was transient in nature and thus no longer legal and required, yet on the other hand, there was continuing justification for the Government of India’s recurring use of Article 370. In the Sampat case, the Supreme Court clarified that this provision with the example of Article 21. The right to life, as defined by Article 21 of the Constitution, entails the right to live in dignity, according to the Court. Under this article, it also includes the right to privacy. Similarly, the term “temporary” in the title of Part XXI was ruled to not indicate “temporary.”
Article 370 was the subject of a slew of opposing arguments. On the one hand, it was stated that the Article was only temporary in nature and hence no longer legal or essential, while on the other hand, there was ongoing justification for the Government of India’s continued use of Article 370. In the Sampat case, the Supreme Court clarified this rule by citing Article 21 as an example. Under Article 21 of the Constitution, the right to life entails the right to live in dignity, according to the Court. Under this article, there is also a right to privacy. Similarly, it was determined that the term “temporary” in the title of Part XXI does not signify “for a limited time.”
Conclusion
The Indian state of Jammu and Kashmir is a vital component of the country. In light of federalism and the state’s unique history of joining the Union of India, the state has been granted some autonomy under Article 370. Article 370 is about granting autonomy or federalism, not about integration. The Supreme Court ruled in 2018 that Article 370 is a permanent provision because the State’s Constituent Assembly no longer exists. Article 370 was declared “inoperative” by the Indian government in order to overcome all other legal challenges, but it still has a place in the Indian Constitution.
