Article 370

Article 370 recognises Jammu and Kashmir’s unique autonomous position and the power to enact laws for the state’s permanent citizens. The Indian Constitution’s Fundamental Rights were declared applicable to Kashmir with exclusions in the 1954 Presidential decree, among other things. According to Cottrell, later revisions to the Indian Constitution changed the validity of fundamental human rights accorded to the permanent inhabitants of Jammu and Kashmir. The state assembly later changed these, establishing “preventive detention statutes” that were exempt from human rights complaints for twenty-five years.

History of Jammu and Kashmir Constitution

Hari Singh, the Maharaja of Kashmir, signed an Instrument of Accession in October 1947, specifying three conditions on which Jammu & Kashmir would hand over sovereignty to the Indian government.

1. Foreign policy 
2. Defence
3. Communication

The Maharaja formed an interim administration in the state in March 1948, with Sheikh Abdullah as Prime Minister. Sheikh Abdullah and three other members of the Indian Constituent Assembly participated in July 1949 to negotiate the special status of J&K, which resulted in the approval of Article 370. Sheikh Abdullah wrote the contentious section.

Article 370

Part XXI of the Indian Constitution headed “Temporary, Transitional, and Special Provisions”, encapsulates Article 370. It stated that the Jammu and Kashmir Constituent Assembly would have the authority to recommend the degree to which the Indian Constitution would apply to the state. The state assembly might even repeal Article 370 entirely, making the whole Indian Constitution applicable to the state.

Following the convening of the state constituent assembly, it suggested those articles of the Indian Constitution which should apply to the state. The 1954 Presidential Order was founded based on this. 

It has been a part of the Constitution from its inception, and it states that just two articles apply to J&K: Article 1, which defines Article 370, and India. According to the Article, other parts of the Constitution can apply to J&K “subject to such exceptions and adjustments as the President may by order define”, with the state government’s consent and the J&K Constituent Assembly’s approval.

Definition of Article 370

Dhara 370 is the Hindi word for Article 370. Dhara means “article”. Article 370, added to the Constitution on October 17, 1949, exempts J&K from the Indian Constitution (save for Article 1 and Article 370 itself) and allows the state to adopt its own regulations. Only “consultation” with the state government is required to extend central legislation to issues covered by the Instrument of Accession (IoA). However, the state government’s “consent” is needed before it may extend it to other areas. 

When the Indian Independence Act of 1947 separated British India into India and Pakistan, the IoA came into play. The Act established three alternatives for the 600 princely states whose sovereignty was restored after Independence – remain independent, join the Dominion of India, or join the Dominion of Pakistan – and this merging with any of the two countries had to be done through an IoA. Despite the lack of a specified form, a state interested in joining might indicate the terms on which it consented to do so. The maxim governing state-to-state transactions must keep agreements between states; if a contract is broken, the general norm must return the parties to their former position.

Provisions of Article 370 (Dhara 370)

Except in the areas of defence, foreign affairs, finance, and communications, Parliament needs the consent of the Jammu & Kashmir administration before passing legislation in the state. Inhabitants of Jammu and Kashmir have distinct citizenship, property ownership, and fundamental rights than the other residents of India. Citizens of other states are prohibited from purchasing property in Jammu and Kashmir under Article 370. The Centre does not have the authority to declare a financial emergency in the state under Dhara 370.

It is worth noting that Article 370(1)(c) specifies that Article 1 of the Indian Constitution applies to Kashmir via Article 370 (Dhara 370). The states of the Union are listed in Article 1. That indicates that the state of J&K is bound to the Indian Union under Article 370. Unless new overriding laws are enacted, removing Article 370, which a Presidential Order may do, would make the state independent of India.

Conclusion

Article 370 is a temporary act to give special access to the people of Jammu and Kashmir. Since the state constituent assembly ceased to exist, the Supreme Court of India concluded in April 2018 that Article 370 had gained permanence. The Indian government declared Article 370 ‘inoperative’, even though it is still in the Constitution to get over this legal snag. Article 370 is not only a component of the Constitution but also of the underlying framework of federalism. As a result, the Supreme Court has affirmed several Presidential Orders issued under Article 370.