You are on page 1of 15

ARTICLE 370 OF THE INDIAN CONSTITUTION

POLITICAL SCIENCE PROJECT

Advika Photumsetty
2014070
DAMODARAM SANJIVAYYA NATIONAL LAW
UNIVERSITY
VISAKHAPATNAM
OCTOBER 2014
1

Acknowledgment
I would like to sincerely thank our Professor Nirmala Devi, for giving me this opportunity to
take up this project regarding article 370 of Indian constitution- Special status of Jammu and
Kashmir. I have tried my level best to collect various data and information about the topic in
order to provide a clear picture regarding the same.

Contents

1. Abstract

2. Research Methodology

3. History behind article 370

4. Implications of article 370

5. Bibliography

15

Abstract

Article 370 of the Indian Constitution gives special provision to the state of Jammu and Kashmir
an autonomous status. The article is drafted in Part XXI of the Constitution, which relates to
Temporary, Transitional and Special Provisions. It tells about the legislation and other powers
vested in J&K as a state as an individual and in relation to India. Since Jammu and Kashmir
presents a variant of the federal structure in which the Indian States were welded, the present
study is expected to provide a perspective for the evolution of the federal frames which the
founding fathers of the Constitution of India constructed. In this study the researcher will look
into these provisions mentioned by the government, the changes it has been through and how it
affects the status of India as a Country in the whole. As it is said that even the moon has some
blots, similarly all the prosperity, divinity and the blessedness of Kashmir has caught the evil
eye. The blood of the holy lake became a swamp of blood. It is mingled with the gore of humans
who have perished in this valley of heaven. The thunder of clouds is replaced by the sounds of
bomb blasts; pretty smiling faces with welcoming eyes are now terrorized and filled with grief.
Why this bloodshed? Why this heaven has turned into a hell and a land of terror? Why this
valley of flowers has turned into a valley of guns and death? Why is it happening?

Research Methodology

The topic of Article 370 and its provisions has a very vast background. Documentation of many
practices is varied as many different outlooks on the topic exist. The research methodology used
in this project is a doctrine study. The material mentioned in this project has been derived from
various other research papers, journals and other online documentation.

Introduction

Kashmir - natures heritage, a sanctuary that has enchanted humans and been celebrated by
mankind for its scenic class. It is a land which used to be an important center of Hinduism and
later for Buddhism. It also has deep roots and recognition in the womb of golden history of
Mahabharata. According to folk etymology, the name Kashmir means Desiccated land (from
Sanskrit, Ka= Water and Shimeera= desiccate).1
Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous
status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with
"Temporary, Transitional and Special provisions",2 the state of Jammu & Kashmir has been
accorded special status under Article 370. This means that all the provisions of the Constitution
which are applicable to other states are not applicable to J&K. 3 Thus the States residents live
under a separate set of laws, including those related to citizenship, ownership of property, and
fundamental rights, as compared to other Indians.4
370. Temporary provisions with respect to the State of Jammu and Kashmir.
1. Notwithstanding anything contained in this Constitution,
(a) The provisions of article 238 shall not apply now 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
1 http://en.wikipedia.org/wiki/Kashmir History of Kashmir
2 http://www.ikashmir.net/history/index.html
3 http://timesofindia.indiatimes.com/india/What-is-Article-370-Three-keypoints/articleshow/35678708.cms
4 http://shobhananair.com/?p=801
6

(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 purpose of this article, the Government of the State means the person for
the time being recognized by the President on the recommendation of the Legislative Assembly
of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice
of the Council of Ministers of the State for the time being in office.
(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 notification5
As written in Article 1 of the Constitution of Jammu and Kashmir which states that the State of
Jammu and Kashmir is and shall be an integral part of the Union of India. Article 5 states that the
executive and legislative power of the State does not extend to matters except those with respect
5 http://en.wikipedia.org/wiki/Article_370
7

to which Parliament has power to make laws for the State under the provisions of the
Constitution of India. These provisions cannot be amended. The constitution was adopted and
enacted on 17 November 1956.6

6 http://en.wikipedia.org/wiki/Article_370
8

History behind Article 370


After the lapse of British paramount, the State of Jammu and Kashmir became independent; it
was free to accede to either of the Dominions, India and Pakistan, by signing an Instrument of
Accession. Maharaja Hari Singh, the then ruler of Jammu and Kashmir acceded to the Dominion
of India by signing an Instrument of Accession on 26th October, 1947. Thus, the accession of
Jammu and Kashmir was final, irrevocable and perfectly legal and thus Jammu and Kashmir
Became an integral part of India. It may also be noted that between 15th August 1947 when the
State of Jammu and Kashmir became sovereign upon the lapse of paramount and 26th October
1947 when Maharaja Hari Singh signed the Instrument of Accession, so called Azad Kashmir
Forces with the support of Pakistan had attacked Kashmir with a view to force the Maharaja to
accede to Pakistan. The Maharaja was obliged to seek military help from India to defend the
territory of his State. After he signed the Instrument of Accession, India acquired jurisdiction
over the State and repelled the attack.7
Keeping in view the circumstances in which the State acceded to India, the Government of India
assured the people of the State that an elected Constituent Assembly will frame a Constitution for
the State and will determine the nature and extent of application of other provisions of the Indian
Constitution over the State. Article 370 only incorporates these assurances. Thus, at the
Commencement of the Constitution only two Articles namely Article 1 and Article 370 applied to
the State. The application of other Articles to the State would be determined by the President in
consultation with the State Government. The President issued the Constitution (Application to
Jammu and Kashmir) Order, 1950 in consultation with Government of the State of Jammu and
Kashmir, specifying the matters with which the Union Parliament may legislate for the State.
Thus, while remaining within the framework of Indian Constitution the Kashmir State virtually
attained an autonomous status not enjoyed by any other state of the Republic of India. However,
the Constitution-makers envisaged the day when the need of the temporary provision would end
and the Article 370 abrogated. But this step was to be taken not at the behests of any extraneous

7 http://darpanonline.org/web-photo/10_41.pdf
9

authority, not even at the demand of the Indian public opinion, however united or strong on the
subject, but at the express wish of the people of Jammu and Kashmir.8

THE IMPLICATIONS OF ARTICLE 370


8 http://darpanonline.org/web-photo/10_41.pdf
10

There has been a wave of revolutionary ideas among the youth and the intellectuals of the State
in the past few years. The abrogation of section 370 is the new slogan with the argument that the
provision feeds secessionist demands and has retarded growth in the State. Now the implications
of the clauses and sub-clauses of this Article need to be analyzed and comprehended to gain a
perspective on the role that J&Ks special status has played in its social, economic and political
development.9
The foremost implication of this Article is the legislative exception that it bestows upon the State
of J&K. There are a number of legislations that do not apply to the State since consultation with
the State Government failed or there was no concurrence. The Indian Penal Code, 1860, arguably
the most comprehensive legislation on criminal law in India, also adopted by Burma, Sri Lanka,
Malaysia, Singapore and Brunei operates in the entire territory of the Union of India except the
J&K. The Prevention of Corruption Act, 1988 the most effective contemporary statute under
which corrupt politicians and government employees are brought to book for their offences is not
applicable to J&K. The applicability of the Religious Institutions (Prevention of Misuse) Act,
1988, under which religious institutions are prohibited from permitting the promotion of any
political activity or the storing of arms and ammunitions on its premises, does not extend to J&K.
J&K is exempted from the application of the Delhi Special Police Establishment Act, 1946, the
source of the establishment and powers of the Central Bureau of Investigation, the premier
criminal investigative body of the country.10 Then, there are numerous legislations that are
applicable to the State, but have been enforced in J&K in a modified form. Certain statutes have
thus, been applied in a limited manner, defeating their basic objectives. The Commissions of
Inquiry Act, 1952, which empowers the Central Government to set up an inquiry commission to
look into any irregularity of public importance, is applicable to J&K, but 61 subjects in the State
List, including prisons, hospitals and water supply, are exempted from its application. Again, the
Protection of Human Rights Act, 1993 is excluded from its application with respect to the
subjects enumerated in the State List. The application of the Unlawful Activities (Prevention)
Act, 1967 does not include within its ambit sections 153-A and 153-B of the Indian Penal Code,
which are concerned with promoting enmity between different groups on grounds of religion,
9 http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf
10 http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf
11

race, place of birth, residence, language, etc. and imputations, assertions prejudicial to national
integration respectively. Hence, this aspect of Article 370 indicates the degree of legal integration
of the State with the rest of the country.
Then there are certain constitutional provisions that do not apply to the State of J&K or are
applicable in a limited manner, as per the order of the President. The Constitution of India
provides a framework for the functioning of country, with its varied provisions on the
fundamental rights of citizens to the office of the President. It is the most honored Code of the
country and the longest written Constitution in the world. However, the State of J&K does not
fall entirely under the ambit of this book of provisions. Article 31C, the provision that prohibits
challenge on certain grounds to a law passed to effect any Directive Principle of State Policy, has
been declared to be not applicable to J&K, and as a result any Central law on the Uniform Civil
faces the possibility of being deemed invalid in the state. Article 172 which fixed the term of the
State Legislatures as five years is not applicable to J&K, whose Constitution specifies the term as
six years at variance with the rest of the country. Excluding the application of Article 360, the
provision dealing with the proclamation of a Financial Emergency, takes away the power of the
Central Government to give directions to the State of J&K for maintaining financial propriety.
Article 365, had it not been declared to be inapplicable, would have empowered the President to
hold the refusal of the State of J&K to follow a direction of the Central Government as
misdemeanor. Then there are certain Constitutional provisions that operate in J&K, albeit in a
modified form. The Supreme Court of India in its landmark judgment of Keshavananda Bharati
v. State of Kerala15 held that the Preamble is a part of the basic structure of the Constitution. The
word secular was added to it by the 42nd Amendment in 1976, but it was meant to be omitted
from application to J&K.
Another anomaly is that the voting right based on adult suffrage is guaranteed to every Indian
citizen resident in J&K for election to the Lok Sabha, while the adult suffrage applies to only
permanent citizens of J&K for its State Legislative Assembly election as per their constitution.
A very important consequence of Article 370 has been the isolation of the people of J&K from
the rest of the country. Every state is said to be an integral part of the nation, but J&K
with its separate Constitution challenges the very significance of this statement. The entire
population of the state has been bereaved of the economic development that the rest of the
12

country has achieved. Private industries cannot transfer land in their own name and hence, the
state has seen no industrialization, while rapid urbanization and the mushrooming of factories in
other states has provided employment and raised the standard of living. Financial legislations
have constantly been prevented from being introduced in the state with the assistance of the farce
called Article 370 and has prevented the concepts of gift tax, urban land ceiling, wealth tax etc.
from making the powerful accountable to the people of the state, thus broadening the divide
between the rich and the poor. Since no land can be owned by people who are not permanent
residents of the state, the power elite who are the only ones with the capacity to invest in
immovable property have cornered the land resources.
The abuse of Article 370 is perhaps the main reason why it should be abrogated, with the abuse
leading to hopeless governance and breakdown of the social machinery. The immunity given to
the J&K State from a number of Parliamentary laws operating in the rest of the country has been
misused greatly by the powerful to deny citizens their rights. On 21st June, 2003, Mohan Lal, a
rikshaw puller, became a victim of custodial death. The responsibility for his torture and murder
was sought to be avoided by the State by seeking immunity from the Protection of Human Rights
Act, 1993. However, the National Human Rights Commission in a commendable order set aside
the immunity and directed the J&K Government to pay Rs. 5 lakhs to the deceaseds mother for
the police atrocity.11
However, there are various other evidences of such misuse of immunity that have not been
redressed. India follows the Juvenile Justice (Care and Protection of Children) Act, 2000, but the
State of J&K refuses to extend the applicability of this statute, while its juvenile justice system is
still governed by the antiquated Jammu and Kashmir Juvenile Justice Act, 1997, thereby
preventing the operation of the Ministry of Women and Child Development of the Government
of India in the state for formulation and implementation of uniform child protection
programmers as required by the UN Convention on the Rights of the Child.24A similar abuse is
evidenced by the Jammu and Kashmir Right to Information Act, 2009 whereby the State
Government is vested with more power as compared to the Central Act of 2005. The Domestic
Violence Act, 2005 does not extend its application to the State of J&K, which has not enacted its

11 http://en.wikipedia.org/wiki/Article_370
13

own protective law for women in the domestic sphere.12 J&K has refused to enact laws that
would extend the applicability of the 73rd and 74th Amendments to the Constitution that provide
for reservation of seats for women in the Panchayats, thus preventing the women in the state
from asserting the right that has become fundamental to the concept of Panchayati Raj all over
the country. Another apparent abuse is the denial of state citizenship to the thousands of minority
Sikhs and Hindus who migrated from Pakistan in 1947 by quoting Section 6 of the Jammu &
Kashmir State Constitution that seems to have set in stone the definition of permanent resident.
These are not isolated examples. Cumulatively, these create the shape of a phenomenon in J&K
a phenomenon of human rights abuse under the garb of validity bestowed upon it by article 370.

12 http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf,

14

Bibliography
Books.
1.

Bazaz, Prem Nath. (1978). Democracy through Intimidation and Terror: The
Untold Story of Kashmir Politics. New Delhi: Heritage Publishers

2.

Edited by Gopal S. (1998), Selected works of Jawaharlal Nehru, Second Series,


Vol. 19, Northamptonshire: Oxford University Press.

Articles
1. http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf

2. http://www.publishyourarticles.net/knowledge-hub/essay/an-essay-on-article-370and-special-status-of-jammu-and-kashmir.html
3. http://en.wikipedia.org/wiki/Article_370

15