Article 370 

About Article 370

What?

• It provided special status to J&K by permitting it to form its own constitution.
• It restricted Parliament’s legislative powers as the approval of state government was required before applying laws in the state except the ones related to defence, foreign affairs, finance and communications.

Changes After Abrogation of A370

• Jammu & Kashmir would no longer maintain its distinct constitution, flag, or anthem.
• The residents of Jammu and Kashmir would no longer possess dual citizenship. Since the newly formed union territory of Jammu and Kashmir will be governed by the Indian Constitution, its citizens will now enjoy the Fundamental Rights guaranteed by the Indian constitution.
• Article 360, which allows for the declaration of a Financial Emergency, would also be applicable.
• All laws enacted by Parliament, including the Right to Information Act and the Right to Education Act, would be enforceable in Jammu and Kashmir.
• Now even if a woman of Jammu and Kashmir marries a temporary resident, she would get the right to property. Earlier, women were given property rights on marrying a temporary resident, but in this way women’s children were deprived of property rights.
• Any citizen of the country (outside the state) can now get a job in Jammu and Kashmir.
• People are more empowered now, unjust laws no longer exist, those discriminated since ages are now getting their due along with comprehensive development.
• With the conduct of elections of Panchayati Raj Institutions such as Panches and Sarpanches, Block Development Councils and District Development Councils, the 3-tier system of grassroot level democracy has now been established in Jammu and Kashmir.
• Organized stone-pelting incidents have come down from 1,767 in 2018 to zero in 2023. Bandhs and hartals have become a distant memory.

Historical Evolution

•  After independence, sovereignty of 600 princely states was restored and they were given three options under Indian Independence Act, 1947:
  1. To remain independent.
  2. To join Dominion of India.
  3. To join Dominion of Pakistan.
• Joining either of the two countries was to be through an Instrument of Accession (IoA) and the joining state could specify their own joining terms.
• The maxim for these contracts between states was Pacta Sunt Servando, i.e., promises between states must be honored and for a breach of contract, the general rule was to restore the parties their original position.
• In October 1947, the then Maharaja of Kashmir, Hari Singh, signed the IoA with India, allowing the Centre to take decisions only on three subjects w.r.t. the state-
  1. Foreign affairs
  2. Defence
  3. Communications
• The IoA had a clause which stated that it cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by the Maharaja by an Instrument supplementary to this Instrument.
• India regarded this accession as purely temporary and provisional, and its stated policy was to settle a dispute on accession in accordance with the wishes of people rather than a unilateral decision of the ruler.
• Following this, an interim government was appointed in J&K in 1948 with Sheikh Abdullah as its Prime Minister who along with his three other colleagues joined the Indian Constituent Assembly and negotiated & drafted the special status of J&K.
• The original draft went through modifications and negotiations and Article 306A (now 370) was finally passed in the Constituent Assembly and was finally included in the Constitution by India’s Constituent Assembly in 1949.

Temporary / Permanent?

• It is listed under the Temporary, Transitional and Special Provisions in Part XXI of the constitution.
• It could be interpreted as temporary as the J&K Constituent Assembly had a right to modify/delete/retain it. It decided to retain it.
• As per the constitution, it was temporary until a plebiscite.
• But the Supreme Court (SC) in 2018 held that despite the headnote using the word “temporary’, Article 370 is not temporary.
• In Sampat Prakash v. State of Jammu and Kashmir (1969), the SC refused to accept Article 370 as temporary and held that as Article 370 has never ceased to be operative thus, it is a permanent provision.

Can it be deleted?

• Yes, Article 370(3) permits its deletion by a Presidential Order, but it must be preceded by the concurrence of J&K’s Constituent Assembly.
• Since such an assembly was dissolved in 1957, one view is it cannot be deleted anymore, and the other view is that it can be deleted with the concurrence of the State Assembly.

Significance for India

• Article 370 has been more useful to India as it has been to J&K as it has acted as a tunnel through which the provisions of Indian Constitution have been extended to J&K.
• Using this, India almost nullified the effect of J&K’s special status by Presidential orders.
• It was used to change provisions for the Governor being elected by the Assembly, 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.
• It was used to extend Article 249 (power of Parliament to make laws on State List entries) to J&K without a resolution by the Assembly and just by a recommendation of the Governor.