Article 370 in Part XXI of the Constitution grants a special status to the State of Jammu and Kashmir (J&K).
Background
- The ruler of J&K, Maharaja Hari Singh, decided not to join India or Pakistan and thereby remain independent.
- Azad Kashmir Forces supported by the Pakistan army attacked the frontiers of the state on 20 October 1947.
- ‘Instrument of Accession of Jammu and Kashmir to India’ was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 1947.
- The state surrendered only three subjects (defence, external affairs and communications) to the Dominion of India.
- Article 370 was incorporated in the Constitution of India. It clearly states that the provisions with respect to the State of J&K are only temporary and not permanent.
Relationship Between J&K and India
- President issued an order called the Constitution (Application to Jammu and Kashmir) Order, 1950, to specify the Union’s jurisdiction over the state.
- In 1952, the Government of India and the State of J&K entered into an agreement at Delhi regarding their future relationship.
- In 1954, the Constituent Assembly of J&K approved the state’s accession to India as well as the Delhi Agreement.
- Then, the President issued another order with the same title, that is, the Constitution (Application to Jammu and Kashmir), Order, 1954.
- This order superseded the earlier order of 1950 and extended the Union’s jurisdiction over the state.
Previous Constitutional position of the state and its relationship with the Union
- Its name, area or boundary cannot be changed by the Union without the consent of its legislature
- The State of J & K has its own Constitution
- Part VI of the Constitution of India (dealing with state governments) is not applicable to this state
- Residuary power belongs to the state legislature except in few matters
- Part III (dealing with Fundamental Rights) is applicable to the state with some exceptions and conditions
- Part IV (dealing with Directive Principles of State Policy) and Part IVA (dealing with Fundamental Duties) are not applicable to the state.
- A National Emergency declared on the ground of internal disturbance will not have effect in the state except with the concurrence of the state government
- The President has no power to declare a financial emergency in relation to the state.
- The President has no power to suspend the Constitution of the state on the ground of failure to comply with the directions given by him.
- The State Emergency (President’s Rule) is applicable to the state.
- However, this emergency can be imposed in the state on the ground of failure of the constitutional machinery under the provisions of state Constitution and not Indian Constitution.
- International treaty or agreement affecting the disposition of any part of the territory of the state can be made by the Centre only with the consent of the state legislature.
- An amendment made to the Constitution of India does not apply to the state unless it is extended by a presidential order.
- The Fifth Schedule (dealing with administration and control of schedule areas and scheduled tribes) and the Sixth Schedule (dealing with administration of tribal areas) do not apply to the state.
- The special leave jurisdiction of the Supreme Court and the jurisdictions of the Election Commission and the comptroller and auditor general are applicable to the state.
- The High Court of J&K can issue writs only for the enforcement of the fundamental rights and not for any other purpose.
J&K Constitution
The Constitution of J&K was adopted on 17 November 1956, and came into force on 26 January 1957.
Its salient features (as amended from time to time) are as follows:
- It declares the State of J&K to be an integral part of India.
- It secures justice, liberty, equality and fraternity to the people of the state.
- It provides for a bicameral legislature consisting of the legislative
- assembly and the legislative council.
- It declares Urdu as the official language of the state.
Article 370 – Revoked
The Centre government revoked Article 370 of the Constitution which gives special status to Jammu and Kashmir and brought in the J&K Re-organisation Bill 2019 which splits the state into two Union Territories: Jammu and Kashmir with an Assembly and Ladakh without one.
The Jammu and Kashmir Reorganisation Bill, 2019:
- The Bill reorganises the state of Jammu and Kashmir into:
- The Union Territory of Jammu and Kashmir with a legislature,
- The Union Territory of Ladakh without a legislature
- The Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will comprise the remaining territories of the existing state of Jammu and Kashmir.
- The Union Territory of Jammu and Kashmir will be administered by the President, through an administrator appointed as the Lieutenant Governor.
- The Union Territory of Ladakh will be administered by the President, through a Lieutenant Governor appointed by him.
- The Union Territory of Jammu and Kashmir will have a Council of Ministers of not more than ten percent of the total number of members in the Assembly.
- The Council will aide and advise the Lieutenant Governor on matters that the Assembly has powers to make laws. The Chief Minister will communicate all decisions of the Council to the Lieutenant Governor.
- The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Ladakh, and Jammu and Kashmir
Central Government’s Argument:
- Prime Minister Narendra Modi stated that Article 35A and 370 held back development in Jammu & Kashmir.
- There must be investment and job opportunities in Jammu and Kashmir. Article 35A, 370 have been standing in the way of development.
- We can build IIMs, but professors are not ready to go there as their children don’t get admission in schools. They can’t find homes. This ends up harming the interests of J&K. Therefore, the past policies need to be reviewed.
- According to Centre for Monitoring Indian Economy’s (CMIE) monthly time-series data on unemployment, Jammu & Kashmir had the highest monthly average unemployment rate of 15 per cent between January 2016 and July 2019 among all the states.
- Most of the manufacturing activity in the state has remained restricted to the state’s inherent capacities in agriculture and handicrafts.
