Jammu & Kashmir; Article 370

Repudiation of the unique status of Jammu and Kashmir

The ‘temporary article,’ Article 370, was inserted into the Indian Constitution on October 17, 1949. It authorized the state of Jammu and Kashmir to develop its constitution and granted it unique powers. The constitutional clause that granted Jammu and Kashmir special status was Article 370, and the following law, Article 35A, gave the state the authority to determine who qualifies as a “permanent resident” of the state and grant them particular rights.

A small portion of the larger territory of Kashmir, which has been the subject of the dispute between India, Pakistan, and China since 1947, Jammu and Kashmir is situated in the northern section of the Indian subcontinent and was granted special status under Article 370 of the Indian constitution. Provide them specific privileges and declare them a “permanent resident” of the state. Article 370 granted it the authority to develop its constitution, state flag, and internal federal government.

Additionally, with the passage of the Jammu and Kashmir Reorganization Act, of 2019, the parliament divided the state of Jammu and Kashmir into two union territories: the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The modification took effect on October 31, 2019.

Supreme Court

The Supreme Court of India accepted 23 petitions opposing the constitutionality of the repeal of Article 370 of the Constitution, and a five-judge panel was established for the purpose. A five-judge constitutional panel unanimously affirmed the legality of deleting Article 370 of the Constitution on December 11, 2023.

In the beginning, the state of Jammu and Kashmir, like all other princely states, concentrated on just three areas: communications, foreign policy, and defiance. Representatives from each of the princely kingdoms were asked to attend the Constituent Assembly of India, which was writing a national constitution. They were also urged to put together state-specific constituent assemblies. While most states failed to put together legislative bodies in time, several succeeded, including Mysore, Travancore-Cochin, and the Saurashtra Union. Despite the State Department’s creation of a model state constitution, on May 19, 1949, the heads of state and chief ministers from every state appeared in front of the State

 Department and agreed that the states did not need their constitutions. They agreed to make the Indian Constitution their own. A few improvements were proposed by the states that elected constituent assemblies and were approved. As a result, every state (or union of states) gained the same standing as an ordinary Indian province. This specifically meant that the topics that the federal and state governments might choose to write laws on were the same across India.

Politicians in Jammu and Kashmir decided to establish an independent constituent assembly for the state. The members of the Indian Constituent Assembly asked that the state’s constituent assembly make decisions on the other issues and that only the sections of the Indian Constitution that related to the original Instrument of Accession be applied to the state. Shortly before the beforehand stated conversation with the other states on May 19, the Indian government consented to the messages.

As a result, Article 370 was added to the Indian Constitution, which stated that Jammu and Kashmir could only be subject to the other articles that granted the Central Government authority with the constituent assembly of the State’s consent. . This was a “temporary provision” since it was meant to remain in effect until the State’s constitution was drafted and ratified. [25] On January 25, 1957, however, the State’s constituent assembly disbanded without suggesting that Article 370 be repealed or changed. As a result, many decisions from the Supreme Court of India and the High Court of Jammu and Kashmir, the most recent of which was rendered in April, supported the notion that the article was now an enduring part of the Indian constitution.

ANALYSIS

The State could not be forced to accept any future Indian Constitution, based on clause 7 of the Instrument of Accession, which Maharaja Hari Singh signed. Drafting its constitution and selecting what extra powers to give the Central Government were both within the State’s preemption. The purpose of Article 370 was to safeguard their rights. ‘Solemn contract’ is what Article 370 documents, according to constitutional expert A. G. Noorani. Only in compliance with the Article’s provision may India or the State unilaterally change or repeal it.

Six specific provisions for Jammu and Kashmir were contained in Article 370:

1. It removed the State from the full force and effect of the Indian Constitution. The authority to create its own constitution was granted to the State.
2. At the time of formulation, the three areas of defence, foreign affairs, and communications were the only areas in which the central legislature had authority over the state.
3. Only with the State Government’s approval could the Central Government’s other constitutional powers be transferred to the State.
4. This ‘concurrence’ was temporary. The Constituent Assembly of the State has to ratify it.
5. Concurrence’ was only granted by the State Government until the State Constituent Assembly was called. No more power extensions were feasible once the State Constituent Assembly dispersed after finalizing the power structure.
6. Only the State’s Constituent Assembly might suggest that Article 370 be repealed or changed.

The State Government’s authority to provide “concurrence” ended on October 31, 1951, when the State Constitutional Assembly met. The sole authority granted to give the Central Government more powers or to embrace Central institutions evaporated after the Constituent Assembly disbanded on November 17, 1956, after adopting a state constitution.

According to Noorani, India’s rulings up to 1957 were founded on this understanding of the constitutionality of the Center-State relationship, but it was later dropped. With the state government’s “concurrence,” further provisions were continued to be extended to the state in the years immediately following.

Presidential orders

When Article 370 was drafted, just two of the Indian constitution’s provisions completely applied to Jammu and Kashmir.

. Other clauses of the constitution would be applicable, with the limitations and changes that the president mentioned in his order after consulting the state government or getting their approval. The president issued several directives with the state of Jammu and Kashmir’s government’s approval to exercise the authority granted by clause (3) of Article 370 of the constitution.

The 1950 Presidential Order

On January 26, 1950, the Presidential Order of 1950—officially known as the Constitution (Application to Jammu and Kashmir) Order, 1950—went into effect in conjunction with the Indian Constitution. It enumerated the subjects and clauses of the Indian constitution that corresponded with the Instrument of Accession, as mandated by clause {b} of Article 370.

The Union legislature was authorized to enact legislation for the State on thirty-eight topics from the Union List. Some of the provisions in ten of the twenty-two parts of the Indian constitution were enforced in Jammu and Kashmir with modifications and limitations determined by the state authority.

At that period, “235 articles of the Indian constitution were inapplicable to the state of Jammu & Kashmir, 9 were partially applicable, and 29 were applicable in a modified form, “according to researcher Bodh Raj Sharma. The presidential order of 1954 replaced this one.”

Presidential order of 1952

At the state government’s request, the Presidential Order of 1952 was released on November 15, 1952. Instead of the words “recognized by the President as the Maharaja of the State,” the expression “recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat”

Jammu and Kashmir” in Article 370. The amendment abolished the Jammu and Kashmir monarchy.

Context: The Constituent Assembly of Jammu and Kashmir met on October 31, 1951, following its election in 1951. On June 12, 1952, the Constituent Assembly strongly decided to remove the monarchy, as advocated by the Basic Principles committee. In a letter to the Indian president that same month, the Hindu-dominated Jammu Praja Parishad demanded that the Indian constitution be completely implemented by the government. The Indian government invited a team from Jammu and Kashmir to Delhi for negotiations on the relationship between the state and the center. After more deliberation, the 1952 Delhi Agreement had been agreed upon.

Sheikh Abdullah, the prime minister of the State, took a long time to put the Delhi Agreement’s terms into effect. However, a resolution abolishing the monarchy and installing an elected Head of State (known as Sadar-i-Riyasat) was accepted by the State Constituent Assembly in August 1952. The Presidential Order of 1952 resulted from the Central government’s approval despite concerns about this piecemeal approach to enacting needs. Karan Singh, who was already serving as the Prince Regent, was chosen by the Legislative Assembly to be the new Sadar-i-Riyasat.

 Jammu and Kashmir Autonomy: Framework and Restrictions

India’s constitution is an administration structure. The subjects for the guideline are isolated into an ‘Affiliation Once-over’, a ‘State Summary’, and a ‘Concurrent Overview’. The Affiliation Once-over of 96 subjects, including gatekeeper, military and global worries, critical vehicle systems, and business issues like banking, stock exchanges and evaluations, are obliged by the Affiliation government to regulate as it were. The State Summary of 66 things covering confinement offices, cultivation, most endeavors and certain charges, are available for States to oversee. The Concurrent Summary, which both the Center and States could establish integrates criminal guidelines, marriage, liquidation, labourer’s associations, purposes for living and cost control. In case of dispute, the Affiliation guideline starts things out. The ‘extra power’, to make guidelines not entirely settled in the Constitution, rests with the Affiliation. The Affiliation may in like manner decide explicit organizations, streams, ports, etc to be ‘public‘, in which case they become Affiliation subjects.

On account of Jammu and Kashmir, the ‘Association Rundown’ and the ‘Simultaneous Rundown’ were at first restricted to the issues surrendered in the Instrument of Promotion; later, they were stretched out with the simultaneousness of the State Government. The ‘lingering powers’ kept on resting with the State instead of the Association.

As per the State Independence Advisory group, 94 of the 97 things in the Association Rundown applied to Jammu and Kashmir; the arrangements of the Focal Agency of Knowledge and Examination and preventive detainment didn’t have any significant bearing. Of the ‘Simultaneous Rundown’, 26 of the 47 things applied to Jammu and Kashmir; the things of marriage and separation, newborn children and minors, the move of property other than rural land, agreements and misdeeds, liquidation, trusts, courts, family arranging and good cause had been precluded – i.e., the State had a selective right to administer on those matters. The option to enact on races to state bodies likewise refreshed with the State.