IAS Mains: Essay on Article 370

Introduction:

essay on article 370

The recent revocation of Article 370 of Indian Constitutions has become a matter of great concern, and it has grabbed the attention of international communities. Thus, along with its significance towards the climate of good governance in Indian Democracy, Article 370 is a must-read topic for the upcoming UPSC/IAS Mains exams.

 Against this background, here is a detail and comprehensive outline of Article 370. These below enumerated points will be insightful to formulate a scoring essay.

Why Article 370 was formulated? – History & Background

Background:

  • Like any other states, Jammu & Kashmir was a princely state. It had the same affairs as any other states on matters of- defence, foreign affairs and communications.
  • While formulating the constitution, all the princely states were invited to send their representatives to Indian Constituent Assembly.
  • States were encouraged to set up constituent assembly in the states. Not all states were able to set up assemblies, only a few set up.
  • Even though the state departments developed a model constitution for the states, when is May 1949, the rules and chief ministers of the states met, they accepted the Constitution of India as their own. Thus, a separate constitution was not necessary.
  • Suggestions to make amendments by the states which elected constituent assemblies were accepted.
  • With acceptance, the positions of all the states became equivalent to that of regular Indian Provinces. This meant, the subject available for legislation by the central and state government was uniform across India.

Jammu and Kashmir in the Background:

  • While accepting the Constitution of India, the representative of Jammu & Kashmir requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State of Jammu & Kashmir.
  • Article 370 was thus incorporated in the Indian Constitution
  • It meant- the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly.
  • It was a “TEMPORARY PROVISION and its applicability was intended to last till the formulation and adoption of the State’s Constitution.
  • Article 370 was dissolved by the State’s Constituent Assembly on 25 January 1957, without recommending either amendment or abrogation of Article 370.
  • Thus, Article 370 became a permanent feature of the Indian Constitution, which received confirmation by various rulings of Supreme Court of India and the High court of Jammu & Kashmir. The latest rulings were in April 2018.

Original Text of Article 370

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
(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 [1950 wording]: For the purpose 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 Maharaja’s Proclamation dated the fifth day of March, 1948;
Explanation [1952 wording]: 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 provision 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) Not with standing 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.
Reference: https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India

Various Important Presidential Orders on Article 370

Listed below are the various Presidential Orders, which were made in accordance to the powers, conferred by Clause [1] of Article 370, with the concurrence of the Government of the State of Jammu and Kashmir.

Presidential order of 1950

  • The Constitution (Application to Jammu and Kashmir) Order, 1950, came into force on 26 January 1950 contemporaneously with the Constitution of India
  • It dealt on the subjects and articles of the Indian Constitution that were in accordance with the Instrument of accession as required by the clause b(i) of Article 370.

It’s Effects:

  • 38 Subjects from the Union List were mentioned, on which the Union Legislature could make laws for the state of Jammu and Kashmir
  • 10 of the twenty-two parts of the Indian Constitution were extended to Jammu and Kashmir, with modification and exceptions as agreed by the state government of Jammu and Kashmir
  • 235 Articles of the Indian Constitution were not applicable to the state of Jammu and Kashmir- 9 articles were partially applicable, and 29 articles were modified to be applicable
  • Order of 1950 superseded by the Presidential Order of 1954

Presidential order of 1952

  • Issued on 15 Nov.1952, at the request of the state government
  • This orders amended Article 370, replaced the phrase “recognised by the President as the Maharaja of Jammu and Kashmir” by “recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat“.
  • The amendment sought the abolition of Monarchy of Jammu and Kashmir

Presidential order of 1954

  • Presidential Order of 1954 came into force on 14 May 1954
  • It was issued with the agreement of the State’s Constituent Assembly, it sought to implement the 1952 the Delhi Agreement.

Further presidential orders (1955–2018)

  • 47 Presidential Orders were issued between 11 Feb. 1956 and 19 Feb.1994, which made various provisions of the Indian Constitution applicable to the state of Jammu and Kashmir.
  • These 47 orders were issued with the ‘concurrence of the Government of the State’ without any Constituent Assembly, which was given by the Governor of the state, nominee of the Union Government.
  • The series of orders during this period were amendment to the Presidential Order of 1954, rather than replacement of the Order of 1954. The process has been termed as “erosion” of the Article 370.
Various Indian Law Applicable to Jammu and Kashmir

The various acts passed by the Indian Parliament have been extended to the state of Jammu and Kashmir over a period of time. Listed below are the Acts which were/are applicable to Jammu and Kashmir in the preview of Article 370.

  • All India Services Act
  • Negotiable Instruments Act
  • Border Security Force Act
  • Central Vigilance Commission Act
  • Essential Commodities Act
  • Haj Committee Act
  • Income Tax Act
  • The Central Goods and Services Tax Act, 2017
  • Integrated Goods and Services Tax Act, 2017
  • The Central Laws (Extension To Jammu And Kashmir) Act, 1956
  • The Central Laws (Extension To Jammu And Kashmir) Act, 1968

However, the non-applicability of National Human Rights Commission [NHRC] Act was set aside in 2010 in view of Article 370.

Revocation of Article 370 by the Union Government & Its Consequences

Listed below are the main highlights of the Revocation of Article 370 by the Union Government:

  • On 5 August 2019, Amit Shah [Home Minister] announced in the Rajya Sabha [Upper House], that the President of India issued “The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) under Article 370, superseding the Constitution (Application to Jammu and Kashmir) Order, 1954.”
  • This order states, that all the provision of the Indian Constitution applies to the state of Jammu and Kashmir. It supersedes the Order of 1954, which stated that only some articles of the Indian Constitution were applicable to Jammu and Kashmir.
  • This Order removes all restrictions, and the separate constitution for Jammu and Kashmir stands Abrogated.
  • This order was issued by the President with the concurrence of the Government of State of Jammu and Kashmir

Addition of clauses in Order 2019:

  • Added clause [4] with four sub-clauses to article 367 under “interpretations”.

Change in Phrase in the Order 2019

  • “Sadar-i-Riyasat” construed as “Governor Jammu and Kashmir”
  • The phrase “state Government” includes the Governor.
  • The expression in Clause [3] of Article 370 changed from “Constituent Assembly of the State referred to in clause (2)” to “Legislative Assembly of the State”.
What happened to Article 370 following the Presidential Order 2019?
  • All clauses of Article 370 under this Order by the President were declared Inoperative.
  • With the approval by both the houses of the Parliament, Article 370 was replaced with the text below:
“370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.”   Source: https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India
Consequence of Revocation of Article 370: Change of status of Jammu and Kashmir

The immediate consequence of the Revocation of Article 370 resulted in the change of status of the state of Jammu and Kashmir.

This bill is known as “Jammu and Kashmir Reorganisation Bill, 2019” and it has these implications:

Particulars Details
Date of Bill introduced 5 August 2019 [by Home Minister Amit Shah]
  State of Jammu & Kashmir   Divided into two Union Territory Union Territory of Jammu and Kashmir
Union Territory of Ladakh
  Legislature [Proposal] Union Territory of Jammu and Kashmir to have its Legislature
Union Territory of Ladakh -no legislature
Inauguration of the Union Territories 31 October 2019- on the birthday of Sardar Patel, which unifies the Princely state into Independent India
  Bill Passing Statistics in both the Houses       Rajya Sabha      In favour     Against
125 Votes 61 Votes
Lok Sabha 370 Votes 70 Votes
         Note: The Bill became an Act after it was signed by the President of India.

Conclusion:

The revocation of Article 370 is carried out in accordance to the constitutional procedures, and based primarily in foster good governance in the conflict torn state of Jammu and Kashmir. This historic Presidential Act of 2019 creates possibilities and offers the citizens of Jammu and Kashmir, and Ladakh to enjoy the same rights and privileges as other citizens of India.

President Ram Nath Kovind on independent day highlighted the immense benefits the two territories would enjoy. To quote his words addressed on the eve of 73rd Independence Day, he said:

“”…I am confident that the recent changes made in Jammu-Kashmir and Ladakh would be of immense benefit to those regions. They will enable the people to access and enjoy the same rights, same privileges and same facilities as their fellow citizens in the rest of the country”.

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