ARTICLE 370 - A brief note

ARTICLE 370- A BRIEF NOTE 

Written By : Ms. Ankita Rana 

Sr. Executive Law, BHEL 

Article 370 of the Constitution of India, 1949 accords a special status to the State of Jammu & Kashmir. It limits the application of the provisions of the Constitution of India to the State of Jammu & Kashmir, (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. It restricts Parliament’s legislative powers in respect of J&K. 

HISTORY OF ACCESSION OF J & K TO INDIA

In order to understand Article 370, it is important to first understand the legislative history behind the provision. The provision was introduced in the Constitution as unlike other princely states, special conditions existed in the State of Jammu & Kashmir as follows:

• India was at war with Pakistan and there was a cease fire agreed operating at the relevant time;

• The internal condition in the state of J & K was still unusual and abnormal;

• a part of the State was still in the hands of rebels;

• India was entangled with the United Nations in regard to Jammu & Kashmir;

• Further, the Government of India had committed themselves to the people of Kashmir in certain respects which commitments included an undertaking that an opportunity be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it.

INSTRUMENT OF ACCESSION

The Government of India Act, 1935 provided that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof. Pursuant to this, on 26 October 1947, the then ruler of Jammu and Kashmir, Maharaja Hari Singh, acceded to India by an Instrument of Accession.

• The Instrument of Accession contained a schedule which specified the matters with respect to which the Dominion Legislature (“Government of India”) would be able to make laws for the State of Jammu and Kashmir;

• This schedule contained matters in respect of only three chief subjects - defence, foreign affairs and communications. The schedule only listed precisely 16 topics under these subject heads plus four others (being elections to Union legislature and the like).

• The Union Legislature was thus only allowed to legislate on matters which formed a part of the Schedule;

• The Constitution of the State of & Kashmir came into force on 26th January, 1956.

 ARTICLE 370

 Article 370 provides for temporary provisions which are applicable

to the State of Jammu & Kashmir. Effectively, the provision places a limitation on the power of the Parliament to make laws which will apply to the State of Jammu & Kashmir. 

Parliament needs the Jammu & Kashmir government's approval for applying laws in the state — except in cases of defence, foreign affairs, finance, and communications.

The law of citizenship, ownership of property, and fundamental rights of the residents of Jammu & Kashmir is different from the residents living in rest of India. Under Article 370, citizens from other states cannot buy property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare a financial emergency in the state.

ABROGATION OF ARTICLE 370

On 5th August 2019, President Ram Nath Kovind Issued a constitutional order superseding the 1954 order, and making all the provisions of the Indian Constitution applicable to Jammu and Kashmir based on resolution passed in both houses of the Parliament with 2/3rd majority. President issued a further order declaring all the clauses of Article 370 except clause 1 to be inoperative.

In addition, the Jammu and Kashmir Reorganisation Act was passed by the Parliament,enacting the division the State of Jammu and Kashmir into two Union Territories to be called Union Territory of Jammu and Kashmir and Union Territory of Ladakh. 

WHAT CHANGES IN JAMMU AND KASHMIR ?

Abrogation of Article 370 has not only ended the special status granted to Jammu and Kashmir under this Article but it will implement the  important laws passed by Parliament over the years, including the Right to Information Act, SC/ST act and those pertaining to domestic violence.

With the abrogation, Gujjars and Bakharwals can also contest elections. There will be reservations for SC/ST in the Jammu and Kashmir Assembly.

Abrogation would also give Dalits the right to join the judicial and administrative services, something which they were not allowed to do previously.

BEFORE	AFTER
Special powers exercised by J&K	No special powers now
Indian citizens from other states could not buy land or property in J&K	People from other states will now be able to purchase land or property in J&K
RTI not applicable	RTI will be applicable
Duration of legislative assembly for 6 years	Assembly duration in union territory of J&K will be for 5 years
If a women from J&K marries out of state, she would lose the citizenship of the state	If a women marries out of state or country, she will still retain all her rights and Indian citizenship
Panchayats did not have any rights	Panchayats will have the same rights as the other states
Right to education (RTE) was not applicable	Children in the state will be benefit from RTE
No reservation for minorities such as Hindus and Sikhs	Minorities will be eligible for 16% reservation
Dual Citizenship	Single Citizenship
Article 360 ( Financial Emergency ) not applicable	Article 360 will be applicable
Separate flag for Jammu & Kashmir	Tricolour will be the only flag