The Article 370

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The Article 370

The Article 370 is a temporary and interim arrangement in light of Instrument of conditional Accession. With respect to J&K, the India’s strength and weaknesses are based in “Instrument of conditional Accession” and Article 370 is the reflection of the same. The relationship of Jammu & Kashmir with Indian Union is based on the “Instrument of conditional Accession” proposed and signed by the Maharaja on 26th of Oct. 1947 and letter of acceptance Dated 27th Oct 1947 of Lord Mountbatten Governor General of India. The conditional Accession has two most important features.

1.    The letter of acceptance as a collateral document forms an indispensible part of Accession and it reveals that the Accession was termed as subject of “dispute” making its acceptance “provisional” subject to ratification by “Reference to the people”

2.    . 2. Maharaja Hari Singh in accordance with the proposed terms of Accession, agreed to be part of Union of India, allowing it to make laws for this state only with respect to Defense, External Affairs and Communication.

 The Accession also vide clause 7 made it categorically clear that “Nothing in this instrument shall be deemed to commit mean any way too acceptance of any future constitution of India or to fetter any discretion to enter into arrangements with Govt. of India under any such future constitution”. Thus at the time of Accession Jammu & Kashmir was the only state to declare its intention to have its own constitution, to be drafted by its own Constituent Assembly.

The terms of Accession of Kashmir with Union of India were maintained till the Constituent Assembly of India was charged with tasks of framing a constitution. Earlier to this the political leader ship of Kashmir and Government of India had agreed that “in view of the special problems arising in respect of this state and the fact that the Government of India have assured its people that they would themselves finally through a “plebiscite” determine their political future” and till then for running day to day affairs a temporary special position should be accorded to Jammu & Kashmir in the future constitution so that a limited field of the Union over the State is ensured. Four representatives were nominated from the Jammu & Kashmir State to represent in Constituent Assembly of India. It was at this stage that the constitutional position of the State was made temporary as defined “Article 370” in the Constitution of India. It was made clear that, till the right of ‘self determination’ is exercised by the people, the state shall be governed temporarily through Article 370 and the Autonomy of the state with regards all other subjects outside the ambit of the Instrument of Accession should be preserved. 
Thus Article 370 mentioned as temporary provision in the Constitution of India, thus does not mean that is it capable of being abrogated, modified or replaced unilaterally. In actual effect, temporary mater of this article arises merely from the fact that the power to finalize constitutional relationship between the state and the Union of India was specifically vested in the Jammu & Kashmir Constituent Assembly. It followed that whatever modification’s, amendments or exceptions that may become necessary either to Article 370 or any other article in the Constitution of India in their application to the Jammu & Kashmir State shall be subject to the decisions of this constituent body only. Thus with the dissolution of constituent assembly on 25th of Jan 1956 in terms of its resolution dated 17 Jan the constitutional relations between union of India and Jammu & Kashmir stands sealed and were final.

The powers of the president to extend other provisions of the Indian constitution to Jammu & Kashmir also stands seized as the Jammu & Kashmir Constituent Assembly vested with concurrence powers is non-existent. But unfortunately till date through various Presidents orders, which are unconstitutional and illegal, as many 94 of the 97 entries in the union list were extended to Jammu & Kashmir as were 260 of the 395 articles of the constitution, thus rendering the Article - 370 in present form as lifeless. 

 Kashmiri political leadership of all shades should demand in one voice conducting of “One time Special Election” not for governance, but for creation of the Jammu & Kashmir Constituent Assembly once again to debate the “temporary nature of Article – 370 in light of Conditional Accession”. This body shall provide an opportunity to one and all, to put forth their perception and possible solution of Kashmir issue be it Azadi, Autonomy or Self-Rule

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the J&K Constituent Assembly later created the state's constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.^[

Text: Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;^[a]

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state's legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 - issued by the President of India on 14 May 1954, exercising the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir

Text: Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;

(ii) acquisition of immovable property in the State;

(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State Government may provide,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."