Important Features of Article 370 of Indian Constitution
As per Indian Constitution, Article 370 provides temporary provisions to the State of Jammu and Kaskmir granting it a special status and a constitutional aspect called autonomy. Some of the important features of Article 370 in relation with the state of Jammu and Kashmir are explained in following points.
Important Features of Article 370
- The article says that the provisions of Article 238, which was omitted from constitution in 1956 during 7th Constitution Amendment when Indian states were reorganized, shall not apply to the state of J&K. This is to note that article 238 deals with 9 Part B states of Free India which were the Princely states of British India.
- Dr B R Ambedkar who was the chairman of the drafting committee of Indian Constitution was against Article 370. The matter became the political prestige of Jawaharlal Nehru, the then Prime Minister who eventually directed Gopalaswami Ayyangar who was a minister without portfolio in first cabinet of India to draft article 370 in consultation with Sheikh Abdullah. This is to note that G Ayyangar was the former diwan to Maharaja Hari Singh of J & K and Sheikh Abdullah was the influential mass leader of the J&K state at that time.
- Article 370 was drafted in Amendment of Constitution in part XXI under temporary and Transitional Provisions.
- As per original draft of Article 370, the government of state means the person recognised by the President as the Maharaja of Jammu and Kashmir for time being in office. This was changed in 1952 to “Government of state means the person recognised by the President upon recommendation of Legislative Assembly as Sadar-e-Riyasat (Governor) for the time being in office”.
Historical Background and Reasons for Formation of Article 370
Post Independence the British dissolved the treaty relations to Princely states. The treaty relations were those set of agreements by which British used to control the Princely states. The dissolution of this treaty indirectly meant that Princely States were free to choose their destiny – they have the option to unite with India, or with Pakistan or remain independent. As compared to other princely states the condition of Jammu and Kashmir was totally different and volatile. While most of the Princely States choosed to unite with Indian Union, Maharaja Hari Singh of J&K remained independent. This gave Pakistan Army an opportunity to enter and acquire large areas of J & K in disguise of tribals and locals. The matter became complicated and with the intervention of United Nations the matter became one of the biggest territorial disputes of world.
As per G Ayyangar, the conditions of Jammu and Kashmir was not ripe enough to fully integrate it to Union of India as one third of the state was under control of Pakistan and the matter was still going through UN. So he argued with some special provisions to run and administer the J&K state for time being and thats why he incorporated transitional provisions in the draft.
Sheikh Abdullah who was a shrewd politician took full advantage of the idea and advocated for granting autonomous status of Jammu and Kashmir. Article 370 was then conceptualized which provided a constitutional link between Indian Union and Jammu and Kashmir.
One of the interesting aspect was during formulation of Article 370 is that Sardar Patel who himself finalized the integration of other Princely States with Indian Union was set a side by Jawaharlal Nehru and himself took the matter along with Sheikh Abdullah and G Ayyangar.
Special Provisions to J&K as per Article 370
- Indian Parliament can not make any law or change any policy without concurrence of State Legislature which in any way relates to – either change of names of state and territories or any act of treaty or agreement which may change or deem to change the integrity or disposition of any of the state’s territory.
- Jammu and Kashmir has its own constitution and its own flag.
- Except for matters including Defense & Security, External Affairs, Communication etc the Parliament of India has to take concurrence to J&K Constitution before taking any decision.
- Declaration of National and Financial emergencies can not be applied in J&K.
- The Fifth Schedule of Indian Constitution which deals with Scheduled Tribes and administration of Scheduled Tribe areas do not hold for J&K.
- Denial of citizenship to the Permanent Residents (PRs) who have migrated to Pakistan do not apply and such person will still carry the citizenship of India.
- The government of India do not have the authority to suspend the legislature of state as a reason of failure to comply with central government.
Revoking Article 370
Clause 3 of Article 370 makes clear that Article 370 can be revoked if a new constituent assembly of J&K is convened and willing to recommend its revocation. Indian Parliament has the power to amend the constitution to change this provision. But this itself is a subject of judicial review which finds that this clause is a basic feature of relationship between State and Centre.
PR issues of Article 370
Article 370 states that the wife or widow of a subject shall acquire the status of her husband so long as she resides in the state and does not leave the state for Permanent Residence outside the state. This also implied that a woman who marries outside the state of J& K will loose her status of PR and the subject of the state.
In a landmark judgement in Oct 2002, the full bench of Jammu and Kashmir High Court passed the judgement that a woman of the state will not loose the status of Permanent Resident of state even after marrying outside the state and will enjoy all rights including property rights.