Scrapping Article 370: Ending autonomy of Jammu and Kashmir Assist Prof. Anjali Dixit, Acting Principle LANDMARK JUDGMENT Fri, May 28, 2021, at ,09:41 AM कश्मीर, ऐ जन्नत काश तू कभी बसी न होती या फिर ये किस्मत तुझसे यूँ रूसी न होतीबंदूख और गोले न होते तेरे किरायेदारWith the sound of gushing water, aroma of pine trees, the vibrancy of saffron, rise of azaan and an unfathomable calling, Kashmir surprises everyone. Gar Firdaus bar-rue zamin ast, hami asto, hamin asto, hamin ast.” – A famous quote by Mughal Emperor Jehangir when he visited Kashmir in the 17th century. It means ‘If there is heaven on earth, it is here, it is here, it is here’. Kashmir is not just a place but an emotion that every person wants to experience. The surreal beauty of this gorgeous paradise has been defined by several poets, authors and philosophers.Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (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. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to other matters, “concurrence” of the state government is mandatory. The Instrument of Accession came into play when the Indian Independence Act, 1947 divided British India into India and Pakistan.What is Article 370? 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", the state of Jammu & Kashmir has been accorded special status under Article 370. All the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister in place of chief minister. Special Features of J&KSeparate Constitution: J&K is the main state in India which has its very own Constitution. The Constitution of J&K was instituted by a different Constituent Assembly set up by the State and it came into constrain on 26 January 1957.Emergency Provisions: The Union of India has no energy to proclaim Financial Crisis under Article 360 in the state. The Union can proclaim crisis in the state just if there should arise an occurrence of War or Outside Aggression. No announcement of crisis made on the grounds of interior aggravation or impending threat thereof should have impact in connection to the state unless (an) it is made at the demand or with the simultaneousness of the legislature of the state; or (b) where it has not been so made, it is connected in this manner by the President to that state at the demand or with the simultaneousness of the administration of that state. In December 1964, Articles 356 what's more, 357 were stretched out to the state.Basic Duties, Directive Principles and Basic Rights: Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are definitely not relevant to J&K. Notwithstanding other major rights, Articles 19(1)(f) and 31(2) of the Constitution are still pertinent to J&K; henceforth the Fundamental Right to property is still ensured in this state. In the Indian Sacred history just a single Fundamental Right has been included up until this point and that is Right to Education. This right too isn't reaching out to J&K.High Court of J&K: The High Court of J&K has constrained powers as analyzed to other High Courts inside India. It can't proclaim any law unlawful. Not at all like High Courts in different states, under Article 226 of the Constitution, can’t it issue writs with the exception of for requirement of Fundamental Rights.Official Languages: Arrangements of Part XVII of the Constitution apply to J&K just seeing that they identify with (I) the official dialect of the Association; (ii) the official dialect for correspondence between one state and another; or between a state and the Union; and (iii) dialect of the procedures in the Incomparable Court. Urdu is the official dialect of the state however utilization of English is allowed for official purposes unless the state assembly gives generally.Miscellaneous: Certain exceptional rights have been conceded to the lasting inhabitants of J&K with respect to work under the state, procurement of relentless property in the state, settlement in the state, and grant and different types of help as the state government may give. The fifth Schedule relating to the organization and control of Schedule Areas and Scheduled Tribes and the sixth Schedule relating to organization of ancestral territories are not relevant to the province of J&K.Autonomy in certain matters: Any activity of the Union Legislature or Union Executive which brings about adjustment of the name or domains or a global arrangement or assention influencing the demeanor of any piece of the region of the state requires the assent of the State Legislature or the State Executive (all things considered) to be compelling. The Union has no energy to suspend the Constitution of J&K.Procedure for Amendment of State Constitution The Provisions of the State Constitution (with the exception of those identifying with the relationship of the state with the Union) might be corrected by an Act of the Legislative Assembly of the state go by not less than 66% of its participation. If such correction looks to influence Governor or Election Commission, it needs President's consent to become effective. No correction of the Constitution of India should stretch out to J&K unless so stretched out by a request of the President under Article 370(1)History of Article 370The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted 'iron clad autonomy' for the state, which Centre didn't comply with. What were the terms included in the IoA for Kashmir?The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”.How did the accession come about?Raja Hari Singh had initially decided to remain independent and sign standstill agreements with India and Pakistan, and Pakistan in fact signed it. But following an invasion from tribesmen and Army men in plainclothes from Pakistan, he sought the help of India, which in turn sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26, 1947 and Governor General Lord Mountbatten accepted it on October 27, 1947.It was India’s stated policy that wherever there was a dispute on accession, it should be settled in accordance with the wishes of people rather than a unilateral decision of the ruler of the princely state. In India’s acceptance of the IoA, Lord Mountbatten stated that “it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people”. India regarded accession as purely temporary and provisional, as stated in the Government of India’s White Paper on J&K in 1948. In a letter to J&K Prime Minister Sheikh Abdullah dated May 17, 1949, Prime Minister Jawaharlal Nehru with the concurrence of Vallabhbhai Patel and N Gopalaswami Ayyangar wrote: “It has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly convened for the purpose.”How was Article 370 enacted?The original draft was given by the Government of J&K. Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. Moving the motion, Ayyangar said that though accession was complete, India had offered to have a plebiscite taken when the conditions were created, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”. On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly.Was Article 370 a temporary provision?It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’. Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. Another interpretation was that accession was temporary until a plebiscite. The Union government, in a written reply in Parliament last year, said there is no proposal to remove Article 370. Delhi High Court in Kumari Vijayalakshmi Jha vs Union Of India (2017) too rejected a petition that said Article 370 is temporary and its continuation is a fraud on the Constitution. The Supreme Court in April 2018 in the case of Kumari Vijayalakshmi Jha vs Union Of India said that despite the headnote using the word “temporary’, Article 370 is not temporary. In Sampat Prakash vs State Of Jammu & Kashmir (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision Can Article 370 be deleted?Yes, Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly. Since such an Assembly was dissolved on January 26, 1957, one view is it cannot be deleted anymore. But the other view is that it can be done, but only with the concurrence of the State Assembly.What is Article 370’s significance for the Indian Union?Article 370 itself mentions Article 1, which includes J&K in the list of states. Article 370 has been described as a tunnel through which the Constitution is applied to J&K. Nehru, however, said in Lok Sabha on November 27, 1963 that “Article 370 has eroded”. India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status. By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments. Ninety-four of 97 entries in the Union List are applicable to J&K; 26 out of 47 items of the Concurrent List have been extended.; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules.The Centre has used Article 370 even to amend a number of provisions of J&K’s Constitution, though that power was not given to the President under Article 370. Article 356 was extended though a similar provision that was already in Article 92 of the J&K Constitution, which required that President’s Rule could be ordered only with the concurrence of the President. To change provisions for the Governor being elected by the Assembly, Article 370 was used to convert it into a nominee of the President. To extend President’s rule beyond one year in Punjab, the government needed the 59th, 64th, 67th and 68th Constitutional Amendments, but achieved the same result in J&K just by invoking Article 370. Again, Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without a resolution by the Assembly and just by a recommendation of the Governor. In certain ways, Article 370 reduces J&K’s powers in comparison to other states. It is more useful for India today than J&K.Is there any ground in the view that Article 370 is essential for J&K being a part of India?Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is categorical acknowledgement about the object of the J&K Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof. Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.” Article 370 is not an issue of integration but of autonomy. Those who advocate its deletion are more concerned with uniformity rather than integration.What is Article 35A?Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954. Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I. Article 35A empowers the J&K legislature to define the state’s permanent residents and their special rights and privileges.Why is it being challenged?The Supreme Court will examine whether it is unconstitutional or violates the basic structure of the Constitution. But unless it is upheld, many Presidential Orders may become questionable. Article 35A was not passed as per the amending process given in Article 368, but was inserted on the recommendation of J&K’s Constituent Assembly through a Presidential Order.Article 370 is not only part of the Constitution but also part of federalism, which is basic structure. Accordingly, the court has upheld successive Presidential Orders under Article 370.Since Article 35A predates basic structure theory of 1973, as per Waman Rao Vs Union of India AIR 1981, Supreme Court, 271, it cannot be tested on the touchstone of basic structure. Certain types of restrictions on purchase of land are also in place in several other states, including some in the Northeast and Himachal Pradesh. Domicile-based reservation in admissions and even jobs is followed in a number of states, including under Article 371D for undivided Andhra Pradesh. The Centre’s recent decision extending to J&K reservation benefits for SCs, STs, OBCs and those living along international borders, announced last week. throws the spotlight back on Article 35A. Conclusion J&K is the most burning issue which should be comprehended however is pending since more than Sixty years of freedom because of a few errors committed by the legislators. This is the opportune time to take legitimate choices with respect to the status of Jammu and Kashmir, if appropriate advances are not taken now then it is conceivable that issue will fire up more in coming future and will keep Jammu and Kashmir from improvement even the entire world will be developed. Need of plebiscite and re-election of constituent assembly becomes necessary. By Assist Prof. Anjali Dixit, Acting Principle