Article 370 of the Constitution of India
Article 370 of the Indian constitution
gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent and part of the larger region of Kashmir which has been the subject of a dispute between India, Pakistan and China since 1947. India administered Jammu and Kashmir as a state from 17 November 1952 to 31 October 2019. Article 370 conferred on it the power to have a separate constitution, a state flag, and autonomy of internal administration.
Article 370 was drafted in Part XXI of the Indian constitution titled "Temporary, Transitional and Special Provisions". It stated that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian constitution would apply to the state. The state assembly could also abrogate Article 370 altogether, in which case all of the Indian Constitution would have applied to the state.
After the state constituent assembly was convened, it recommended the provisions of the Indian constitution that should apply to the state, based on which [|1954 Presidential Order] was issued. Since the state constituent assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
On 5 August 2019, the Government of India issued a Presidential Order superseding the 1954 order, and making all the provisions of the Indian Constitution applicable to Jammu and Kashmir. The order was based on the resolution passed in both houses of India's parliament with a two-thirds majority. A further order on 6 August made all the clauses of Article 370 except clause 1 to be inoperative.
In addition, the Jammu and Kashmir Reorganisation Act, 2019 was passed by the parliament, enacting the division of the state of Jammu and Kashmir into two union territories to be called Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The reorganisation took place on 31 October 2019.
A total of 23 petitions were presented to the Supreme Court of India, challenging the constitutionality of the abrogation of Article 370 of the Constitution, constituting a five-judge bench for the same. On 11 December 2023, a five judge constitution bench unanimously upheld the constitutionality of the abrogation of Article 370 of the Constitution.
Purpose
The state of Jammu and Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs and communications. All the princely states were invited to send representatives to India's Constituent Assembly, which was formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states. Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and Mysore. Even though the States Department developed a model constitution for the states, on 19 May 1949, the rulers and chief ministers of all the states met in the presence of States Department and agreed that separate constitutions for the states were not necessary. They accepted the Constitution of India as their own constitution. The states that did elect constituent assemblies suggested a few amendments which were accepted. The position of all the states thus became equivalent to that of regular Indian provinces. In particular, this meant that the subjects available for legislation by the central and state governments was uniform across India.In the case of Jammu and Kashmir, the state's politicians decided to form a separate constituent assembly for the state. The representatives to the Indian Constituent Assembly requested that only those provisions of the Indian Constitution should be applied to the state as corresponding to the original Instrument of Accession, and that the state's constituent assembly would decide on the other matters. Government of India agreed to the demands shortly before the aforesaid 19 May meeting with the other states. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its applicability was intended to last until the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus, the Article was considered to have become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.
Original text
Analysis
The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State could not be compelled to accept any future Constitution of India. The State was within its rights to draft its own constitution and to decide for itself what additional powers to extend to the Central Government. Article 370 was designed to protect those rights.According to the constitutional scholar A. G. Noorani, Article 370 records a 'solemn compact'. Neither India nor the State can unilaterally amend or abrogate the Article except in accordance with the terms of the Article.
Article 370 embodied six special provisions for Jammu and Kashmir:
- It exempted the State from the complete applicability of the Constitution of India. The State was conferred the power to have its own constitution.
- Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
- Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
- The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.
- The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
- Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.
Noorani states that this understanding of the constitutionality of the Centre-State relations informed the decisions of India till 1957, but that it was abandoned afterwards. In subsequent years, other provisions continued to be extended to the State with the 'concurrence' of the State Government.
Presidential orders
When Article 370 was originally created, only two articles of the Indian constitution applied in full to Jammu and Kashmir. Other provisions of the constitution would apply with exceptions and modifications specified by the president in his Order in consultation with or the concurrence of the government of the state. In exercise of these powers, as conferred by clause of article 370 of the constitution, the president made a series of orders with the concurrence of the government of the state of Jammu and Kashmir.Presidential order of 1950
The Presidential order of 1950, officially The Constitution Order, 1950, came into force on 26 January 1950 contemporaneously with the constitution of India. It specified the subjects and articles of the Indian constitution that corresponded to the Instrument of Accession as required by the clause b of the Article 370.Thirty eight subjects from the Union List were mentioned as matters on which the Union legislature could make laws for the State. Certain articles in ten of the twenty-two parts of the Indian constitution were extended to Jammu and Kashmir, with modifications and exceptions as agreed by the state government.
According to scholar Bodh Raj Sharma, at this stage, "235 articles of the Indian constitution were inapplicable to the state of Jammu & Kashmir, 9 were partially applicable, and 29 were applicable in a modified form".
This order was superseded by the Presidential order of 1954.
Presidential order of 1952
The Presidential order of 1952 was published on 15 November 1952, at the request of the state government. It amended the Article 370, replacing the phrase "recognised by the President as the Maharaja of Jammu and Kashmir" by "recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". The amendment represented the abolition of the monarchy of Jammu and Kashmir.Background: The Constituent Assembly of Jammu and Kashmir was elected in 1951 and convened on 31 October 1951. The Basic Principles committee of the Constituent Assembly recommended the abolition of the monarchy, which was unanimously approved by the Assembly on 12 June 1952. In the same month, the Hindu-dominated Jammu Praja Parishad submitted a memorandum to the president of India demanding the full application of the Indian constitution to the State. The government of India summoned a delegation from Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the State. After discussions, the 1952 Delhi Agreement was reached.
The State's prime minister Sheikh Abdullah was slow to implement the provisions of the Delhi Agreement. However, in August 1952, the State Constituent Assembly adopted a resolution abolishing the monarchy and replacing the position by an elected Head of State. Despite reservations on this piecemeal approach to adopting provisions, the Central government acquiesced, leading to the Presidential Order of 1952. The Legislative Assembly elected Karan Singh, who was already acting as the Prince Regent, as the new Sadar-i-Riyasat.