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Abrogation of Article 370 - An Analysis

[Currently pursuing B.A. LL.B. (Hons.), RGNUL] 02 Sep 2019

This is an award-winning article at the Think India 1st National Article Writing Competition 2019.


The Constitution of India is an amalgamation of different constitutions from around the globe. The drafters were very prudent while drafting the world’s lengthiest constitution due to the diversity that is possessed by India. Every state is unique in one or the other sense as each has its own culture, tradition and is diverse either topographically or culturally. However, among all the 29 states, the most diverse and the most beautiful is the state of Jammu & Kashmir (Hereinafter referred as J&K). The state of J&K is the northern most state in Indian sub-continent and shares the border with India’s archenemies China and Pakistan, thereby making it vital strategically. The diversity of J&K is evident from Article 370 of the Indian constitution; this article exclusively deals with the state of J&K that came under the administration of Government of India in 1947, granting it a special status. The article proves to be the most debatable constitutional provision since its adoption in 1950, as one section of the society demands its abrogation while the other half vehemently opposes this demand.

Historical Background

Article 370 drafted by Dr. BR Ambedkar and Gopalaswami Ayyangar provides special autonomy to the state of J&K. It was initially a temporary provision and was included in Part XXI of the Indian constitution that deals with Temporary and Transitional Provisions.[1] The origin of this article can be traced back to British India that consists of 562 princely states that were ruled by Kings, Nawabs, Rajas. These states were not directly under the control of British administration, only matters pertaining to defence, foreign affairs and telecommunication were under its aegis.[2] In 1947, the British government sought to give independence to British India by separating it into two, namely, India and Pakistan. Along with this, an agreement was entered between India and Pakistan that none of the two countries would ever attack the region of J&K. However, Pakistan attacked J&K on 6 October 1947 through ‘Azad Kashmir Forces’, in order to save the area from the terror the then Maharaja of J&K Maharaja Hari Singh chose to accede to India by signing of Instrument of Accession on 26 October 1947. The accession was provisionally in nature as the will of people is ascertained by plebiscite. With the accession, the Indian government got access to control the defence, external affairs and communications of the territory and other matters were left with the ruler.

Article 370 was incorporated in the Indian constitution with a stipulation that other articles of Indian constitution would be made applicable to the state of J&K with the concurrence of State’s constituent assembly.[3] With the advent of time, Sheikh Abdullah (the then leader of the state of J&K) demanded the plebiscite by insisting on the right of self-determination of the people of J&K ultimately resulting into signing of Delhi Agreement with Central Government in 1952. In addition to it, in 1954 the president promulgated presidential orders with the concurrence of the state government of J&K which implemented the provisions of Delhi Agreement which led to addition of Article 35-A in the Indian constitution.[4] This provision empowers the state legislature to legislate on the privileges of permanent residents of the state in respect to immovable property, employment and residence.

What is Article 370 & 35A?

The Article 370 was included in the constitution of India since its inception in 1950. It exempts the state of J&K from the provisions of the Indian constitution (except article 1) and permits the state to draft its own constitution. It also restricts Parliament’s legislative power in respect of J&K as every law is made applicable to the state of J&K with the ‘concurrence’ of the state government. The article was included in the constitution in order to honor the Instrument of Accession entered between the government of India and Maharaja Hari Singh, this is honored due to the internationally recognized principle ‘pacta sunt servanda’ which means that the promises must be honored otherwise the parties must be restored to the original position.

Article 35A stems from Article 370 as it originated through a Presidential order in 1954. This article is also unique in its own way as it do not appear in the main draft of the Indian constitution but comes in Appendix-I. It defines ‘permanent resident’ and empowers the J&K legislature to grant privileges and immunities to the permanent residents of the state in respect to immovable property, employment and residence.

Special Status: An Unconstitutional Measure

Article 370 that grants a special status to the state of J&K as the state can have its own constitution and flag, whereas Article 35A grants special status to its residents in respect to immovable property, employment and residence. The said article that grants privilege is unconstitutional as it violates the principle of equality before law enshrined under international covenants and Indian constitution.[5] Despite the fact that various international covenants have recognized right to freedom of movement and residence[6] it restricts this right of the people living outside the territory of J&K to acquire permanent residence in the state. A few common law counties constitution provides that every citizen is entitled to all the privileges and immunities and no one would be discriminated.[7] The apex court held that a state is not entitled to discriminate against persons coming from other states merely on the ground that they are residents of another state [8] and classification based on residence should be on a scientific study but not based on some broad generalization, artificial differentiation & irrelevant assumption. [9] Therefore, the special status accorded to the state of J&K should be abrogated as it violates the human rights enshrined and protected under various instruments.

Abrogation of Article 370: An Anomaly

Article 370 was initially a temporary provision granting autonomy to the state of J&K, its applicability was intended to last until the formulation and adoption of state’s constitution and the clause 7 of the instrument of accession gave the power to abrogate or amend the provision only on the recommendation of Constituent Assembly.[10] However, the constituent assembly dissolved itself in 1957 without recommending either abrogation or amendment to the article 370, thereby making it a permanent feature of the Indian constitution. Reliance is placed on Prem Nath Kaul v. State of J&K,[11] in this case the apex court held that the power of President and Parliament is conditional on the final approval of constituent assembly. The apex court also held that the situation are been altered and Article 370 would continue to remain in force and every amendment in the constitution would be affected only when it is applied by President under Article 370 (1).[12] In State Bank of India v. Santosh Kumar Gupta,[13] the apex court while deciding that whether an act of parliament of India if in contravention to any clause mentioned in the Instrument of Accession of J&K is applicable to the State of J&K. The apex court by applying the principles of pith & substance held that, even if there is incidental encroachment by an act of parliament of India over a legislation of J&K, it cannot invalidate it. However, the J&K High Court in a judgment delivered in 2015 held that the constitution of the state is “sovereign in character” and the Assembly exercises sovereign power to legislate laws. The court also said that the “sovereign character” of the state cannot be challenged or abridged. In addition to it the Supreme Court in 2018 said that despite the head note using the word ‘temporary’, Article 370 is not temporary.[14]

With the divergent views of judiciary and the lacuna in law, it is difficult to abrogate Article 370 by merely issuing a Presidential order. Article 370 (3) confers the power on President to cease the effect of the article by issuing a public notification, however, this power is curtailed by the proviso which mandates that the recommendation of constituent assembly is necessary, which ceases to exist since 1957. Therefore, the government added few clauses to Article 367 which deals with ‘interpretations’, in which the word ‘Sadar-i-Riyasat’ was replaced with ‘the Governor’ and ‘Constituent Assembly’ was replaced as ‘Legislative Assembly of the State’. As a result, by imposing a Presidential rule in the state of J&K under Article 356, the parliament performs the legislative function of the state and in order to abrogate the Article 370 legislative assembly of the state is to be considered which ultimately the union parliament is. On the other hand, if any amendment made to the constitution that results in any change in Seventh Schedule of Indian constitution then such amendment should be ratified by not less than half of the states. Therefore, the abrogation of Article 370 could be termed as a carefully thought and practiced move of the government.

Conclusion

The special status given to the state of J&K is always been a debatable issue. However, special provision is given to some states in India through Article 371 and even Hong Kong is considered an integral part of China with some special reservations. Article 370 has proved to be beneficial in some aspects primarily related to land distribution, while on the other hand, this special status has proved to be fatal for the state. The state is rich in beauty and can be a major revenue source for tourist establishments. Due to the effect of status, the state lacked in industrial development as it does not allow outside investment and also refrain outsiders from buying land. This scenario ultimately leads to unemployment and indirectly aiding militancy as the population of youth is on a rise. The question of Article 370 is a sensitive issue and the abrogation of it is done in a thoughtful manner as it did not led to much turmoil and tension in parts of the country or the state.



[1] A. VarshneyThree Compromised Nationalisms: Why Kashmir has been a Problem, In Perspectives on Kashmir: The Roots of Conflict in South Asia 191-234 (Boulder,Colorado: Westview Press 1992).

[2] Prem Nath BazazStruggle for Freedom in Kashmir 140-160 (New Delhi, Kashmir Publishing Company) (1st ed., 1954).

[3] Amitabh Mattoo, Understanding Article 370, THE HINDU, Dec 06, 2013, https://www.thehindu.com/opinion/lead/understanding-article-370/article11640894.ece1.

[4] Rekha ChowdharyJammu and Kashmir: Politics of Identity and Separatism 48, (Routledge 2015).

[5] International Covenant on Civil and Political Rights, art. 26, Dec. 16, 1966, 999 UNTS 171 and 1057 UNTS 407; INDIA CONST. art. 14.

[6] Universal Declaration of Human Rights, art. 13, Dec. 10, 1948, G. A. Res. 217A (III), U. N. Doc. A/810 at 71; International Covenant on Civil and Political Rights, art. 12, Dec. 16, 1966, 999 UNTS 171 and 1057 UNTS 407.

[7] AUSTRALIA CONST. sec. 117; U.S CONST. art. IV, sec. 2.

[8] Lakshman v. State of Madhya Pradesh, AIR 1983 SC 656.

[9] Harshandra Choubisa v. State of Rajasthan, AIR 2002 SC 2897.

[10] A.G Noorani, Article 370: A Constitutional History of Jammu and Kashmir, OUP, 2 (2011).

[11] Prem Nath Kaul v. State of Jammu & Kashmir, AIR 1959 SC 749.

[12] Sampat Prakash v. State of Jammu & Kashmir, AIR 1970 SC 1118.

[13] State Bank of India v. Santosh Kumar Gupta and Anr, (2017) 2 SCC 538.

[14] Ishfaq Tantry, J&K’s special status cannot be altered: HC, TRIBUNE NEWS SERVICE, Jul 18, 2015, https://www.tribuneindia.com/news/jammu-kashmir/community/j-k-s-special-status-cannot-be-altered hc/107884.html.

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