Article 370 in The Constitution Of India 1949
370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution,
- (a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
- (b) the power of Parliament to make laws for the said State shall be limited to
(i) 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
(ii) 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 purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948;
(c) the provisions of Article 1 and of this article shall apply in relation to that State;
(d) 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.
ARTICLE 370 OF CONSTITUTION OF INDIA HISTORY
● The Government of India issued a Presidential Order on August 5, 2019, which replaced the order from 1954 and made Jammu and Kashmir subject to all of theConstitution.
● The resolution that received a two-thirds majority in both chambers of the Indian parliament served as the foundation for the order. All of Article 370’s clauses—all but clause 1—were rendered inoperative by a subsequent order on August 6.
● Additionally, the parliament approved the Jammu and Kashmir Reorganisation Act, 2019, which established the division of the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The restructuring happened on October 31, 2019.
● The Supreme Court of India received a total of 23 petitions contesting the central government’s intention to repeal article 370 in the constitution of India, which resulted in the formation of a five judge bench.
Impact of Abrogation of Article 370 On J&K
After the constitutional changes and reorganization of the erstwhile State of Jammu-Kashmir, the Union territories of Jammu-Kashmir and Ladakh have been fully integrated into the mainstream of the nation. As a result, all the rights enshrined in the Constitution of India and benefits of all the Central Laws that were being enjoyed by other citizens of the country are now available to the people of Jammu-Kashmir and Ladakh.
The change has brought about socio-economic development in both the new UT’s i.e. UT of Jammu-Kashmir and the UT of Ladakh. Empowerment of people, removal of unjust Laws, bringing in equity and fairness to those discriminated since ages who are now getting their due along with comprehensive development are few of the important changes that are ushering both the new Union Territories towards the path of peace and progress.
With the conduct of elections of Panchayati Raj Institutions such as Panches and Sarpanches, Block Development Councils and District Development Councils, the 3-tier system of grassroot level democracy has now been established in Jammu and Kashmir.
This was stated by the Minister of State for Home Affairs, Shri G. Kishan Reddy in a written reply to question in the Rajya Sabha today.
The Need for Changes
- Article 370 was added in the Indian constitution to provide autonomy to J&K.
- However, it failed to address the well-being of Kashmiris who have now endured two generations of insurgency and violence.
- It contributed to the gap between Kashmir and the rest of the nation.
- International events
- The situation emerging in the western neighbourhood and the possible re-ascendance of the Taliban in Afghanistan call for greater attention and care.
- More so, the emerging geopolitical dynamics in Afghanistan and the resultant United States-Pakistan rapprochement could have potentially led to more heat on the Kashmir situation in the months ahead.
- Constitutional challenges
- Presidential order that sought to abrogate of Jammu and Kashmir’s special status, according to Article 370 (3) the President would require the recommendation of the constituent assembly of Jammu and Kashmir to make such a change.
- However, the 2019 Presidential order adds a sub-clause to Article 367, replacing the terms:
- “Constituent Assembly of Jammu and Kashmir” to mean “legislative Assembly of Jammu and Kashmir”.
- “Government of Jammu and Kashmir” to mean “Governor of Jammu and Kashmir acting on the aid and advice of the council of ministers”.
- The government sought to dilute the autonomy under Article 370 without bringing a Constitutional Amendment that would require a two-thirds majority in the Parliament.
- This provision is currently under challenge in the Supreme Court on the ground that it added article 35A in the Indian Constitution only through a Presidential Order.
- Conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred to the President by the State Assembly.
- In the reorganisation of the state, the Presidential order also requires the concurrence of the government of the state. However, since Jammu & Kashmir is currently under Governor’s rule, the Governor’s concurrence is deemed to be the government’s concurrence.
- Federalism issue: The Instrument of Accession was like a treaty between two sovereign countries that had decided to work together.
- The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured.In Santosh Kumar v. State of J&K &ors (2017), the SC said that due to historical reasons, Jammu and Kashmir had a special status. In SBI v Zaffar Ullah Nehru (2016), the SC held that article 370 in the constitution of india cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.
A 10-year strategy for education, employment and employability should be deployed for uplifting Kashmir. The Gandhian path of non-violence and peace should be adopted to solve the legitimacy crisis in Kashmir. The government can mitigate the challenges emanating out of Action on article 370 by launching a comprehensive outreach programme to all Kashmiris. In this context, Atal Bihari Vajpayee’s version of Kashmiriyat, Insaniyat, Jamhooriyat (inclusivity culture of Kashmir, humanitarianism and democracy) for Kashmir solution, should become a cornerstone of the forces of reconciliation in the State.
Supreme Court hearing on Article 370 abrogation | Day 12| on date 29 Auguest 2023
CJI Chandrachud said that the restoration of democracy is important and asked the Solicitor General to take instructions on whether there is a definite timeline for the restoration of Jammu & Kashmir’s statehood
Solicitor General Tushar Mehta apprised the Supreme Court on Tuesday that the Union government will restore the statehood of Jammu and Kashmir (J&K) however Ladakh will continue to remain a Union Territory.
‘I have taken instructions. The instructions are that Union Territory is not a permanent feature. But I will make a positive statement the day after tomorrow. Ladakh will remain a Union Territory’, Mr. Mehta said during the course of the hearing.
Such an assurance was given after Chief Justice of India (CJI) D.Y. Chandrachud asked the Solicitor General to take instructions from the Union government on whether there is a definite timeline for the restoration of Jammu and Kashmir’s statehood while underscoring that the restoration of democracy is vital.
‘We understand that these are matters of national security…the preservation of nation itself is the overriding concern. But without putting you in a bind, you and the Attorney General may seek instructions on the highest level – is there a time frame in view?’, CJI Chandrachud enquired.
Notably, CJI Chandrachud pointed out that the wide chasm between the absolute autonomy of J&K as it existed on January 26, 1950, and its complete integration as brought about on August 5, 2019, had been substantially bridged in the interim period.
‘..It is obvious that a substantial degree of integration had already taken place between 1950 to 2019– in 69 years. And therefore what was done in 2019, was it really a logical step forward to achieve that integration?’, the CJI asked.
The Bench had earlier asked Attorney General R. Venkataramani to look into the suspension of Zahoor Ahmad Bhat, a senior lecturer of political science four days after he pleaded against the Centre’s move to abrogate Article 370 before the apex court. Justice B. R. Gavai also questioned the Centre about the “close proximity” between Mr Bhat’s appearance in court and the suspension order.