Article 370 – A controversial article

WHAT IS ARTICLE 370?

Article 370 was a temporary provision in the Indian Constitution that granted special autonomous status to the state of Jammu and Kashmir. It was introduced in the Constitution in 1949, shortly after India gained independence from British rule. The article specified that several provisions of the Indian Constitution would not apply to Jammu and Kashmir unless the state’s Constituent Assembly agreed to them.

WHAT ARTICLE 370 SIGNIFIES?

Article 370 granted significant autonomy to Jammu and Kashmir. It allowed the state to have its own constitution, flag, and decision-making authority over all matters except defense, foreign affairs, finance, and communications. Many laws passed by the Indian Parliament required the approval of the state government or its legislature before they could be applied in Jammu and Kashmir. The article gave Jammu and Kashmir a unique constitutional position, conferring special status on the state within the Indian Union.

The special status accorded to Jammu and Kashmir under Article 370 became contentious over the years. Critics argued that it hindered the integration of Jammu and Kashmir with the rest of India and impeded regional development. Supporters, however, viewed it as a safeguard for the unique identity and autonomy of the state. In August 2019, the government of India, led by Prime Minister Narendra Modi, revoked the special status accorded to Jammu and Kashmir under Article 370.

The state was also bifurcated into two union territories – Jammu and Kashmir, and Ladakh. The revocation of Article 370 was highly controversial and sparked widespread debate and protests within and outside of India. The Indian government viewed the revocation of Article 370 as a step towards fully integrating Jammu and Kashmir into the Indian Union and promoting development in the region. The move was aimed at facilitating the application of central laws to Jammu and Kashmir, which had been exempted from them under Article 370.

However, several political parties, human rights organizations, and some countries, particularly neighboring Pakistan, criticized the decision. They argued that it violated the rights of the people of Jammu and Kashmir and could lead to further unrest in the region.

The revocation of Article 370 remains a significant political issue in India, with ongoing debates about its implications for the region and its people. The Indian government has taken several measures to restore normalcy and promote development in Jammu and Kashmir, including the release of political detainees and the execution of several infrastructure projects. However, the situation in the region remains complex, and the long-term impact of the revocation of Article 370 is yet to be seen.

CASE DESCRIPTION

The Indian Union government, on August 5th and 6th, 2019, took a historic decision to revoke the special status of Jammu and Kashmir by repealing Article 370 of the Constitution of India. Article 370 was a provision that granted Jammu and Kashmir a unique constitutional status, separate from other states in India. The provision aimed to allow Jammu and Kashmir to transition from an independent princely state to a democratic state under the Dominion of India.

The Instrument of Accession signed by Maharaja Hari Singh of Jammu and Kashmir in 1947 was the foundation of Article 370. This instrument acceded the state to India but limited India’s power to legislate for the state to matters of defence, external affairs, and communication. Article 370 consisted of all the conditions specified in the Instrument of Accession. The provision substantially limited Parliament’s power to legislate for the State, giving greater power to the Jammu and Kashmir state legislature. It aimed to ensure that the people of Jammu and Kashmir would have a complete say in their sovereignty, and all laws that applied to them came into force with their consent.

Article 370 had three main ingredients. Firstly, India would not make laws in Jammu and Kashmir except for three subjects included in the Instrument of Accession. The Parliament could make laws beyond them only with the “concurrence of the Jammu and Kashmir Constituent Assembly.” Secondly, no provisions of the Indian Constitution would be applicable to Jammu and Kashmir except for Article 1, which declared India as a “Union of States,” and Article 370.

The President of India could apply provisions of the Indian Constitution in Jammu and Kashmir through an executive order – this would insulate the Constitution of Jammu and Kashmir from the influences of the Parliament of India. Thirdly, according to Article 370(3), the special status of Jammu and Kashmir could not be amended or repealed unless the Constituent Assembly of Jammu & Kashmir recommended it.

PRESIDENTIAL ORDER

On August 5th, 2019, President Ram Nath Kovind issued a presidential order (C.O. 272) amending Article 367 of the Constitution that explains how the Constitution should be interpreted. The amendment made it such that the reference to the “Constituent Assembly” in Article 370(3) became a reference to the “Legislative Assembly.” Initially, Article 370 could only be amended by the recommendation of the Jammu and Kashmir Constituent Assembly. C.O. 272 allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly.

Since Jammu and Kashmir was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament. So, a few hours after C.O. 272 was issued, the Rajya Sabha recommended the abrogation of Article 370 through a Statutory Resolution.

On August 6th, 2019, President Kovind issued a Proclamation, C.O. 273, putting into effect the Rajya Sabha’s recommendation. All clauses of Article 370 ceased to operate, except clause 1, which was amended to state that the Constitution of India applies to the State of Jammu and Kashmir. This removed the special status of Jammu and Kashmir. On August 9th, 2019, the Union Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the State of Jammu and Kashmir into two Union Territories: Jammu and Kashmir and Ladakh. Only the former retained a legislative assembly.

Following this, three Article 32 petitions were filed, challenging the constitutionality of the dilution of Article 370. The first challenge pertains to the constitutionality of the presidential orders, and the second one challenges the bifurcation of the State of Jammu and Kashmir into two Union Territories. The petitioners applied the doctrine of colourable legislation, which means that “what cannot be done directly, cannot be done indirectly.”

The petitioners say that the President has indirectly amended Article 370, a Constitutional provision, without the concurrence of the Constituent Assembly of Jammu and Kashmir. This was enabled by substituting “constituent assembly” with “legislative assembly”. They further argue that the Jammu and Kashmir Reorganisation Act, 2019, was unconstitutional under Article 3, which empowers the Parliament to form new states and alter or modify the boundaries of existing states.

The petitioners contend that Article 3 does not give the Parliament powers to downgrade federal democratic states into a less representative form such as a Union Territory. The petitioners further argue that in a federal democracy, the right to autonomous self-government, specifically the right to make laws, should be preserved.

CONCLUSION

Article 370 of the Indian Constitution granted special autonomous status to the state of Jammu and Kashmir, providing considerable autonomy in various aspects of governance. However, the impact of this article on the integration of Jammu and Kashmir with the rest of India and its implications for development in the region became a subject of debate over time. In August 2019, the Indian government decided to revoke Article 370, effectively removing the special status accorded to Jammu and Kashmir, a move that sparked widespread debate and controversy within and outside of India.

While supporters of the revocation argued that it would lead to the full integration of Jammu and Kashmir with the rest of India and promote development and security in the region, critics raised concerns about the impact on the unique identity and autonomy of Jammu and Kashmir, as well as the potential implications for human rights and regional stability. The revocation of Article 370 remains a significant and complex issue in Indian politics, with ongoing discussions about its consequences for the region and its people. The long-term effects of this decision are yet to be fully realized, and it continues to shape political discourse and developments in India and beyond.

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