Article 370: Critical Analysis


Introduction
Modi Government took the most valiant decision in the 70 years of the history of the Republic of India to remove the contentious provision of Article 370 from the Constitution of the world’s largest democracy. As per Article 370, the state of Jammu & Kashmir will have its own Constitution and Indian Constitution will have no application in the state except two provisions of Article 1 and 370. The Ministry of Law and Justice issued a notification titled The Constitution (Application To Jammu And Kashmir) Order, 2019 overriding the Order of 1954 and removed Article 370 of the Indian Constitution. 

Raja Hari Singh was the Hindu ruler of the Muslim majority princely state of Kashmir. When India got independence from Britishers, the Hindu ruler determined to remain independent and remained neutral with India and Pakistan. However, when Pakistan supported the invasion of Kashmir through the incursion of its army and local tribal people, Maharaja altered his mind and decided to take the aid of India. On 26 October 1947, he signed the instrument of accession with Dominion of India in return of military aid. The present situation of Kashmir is turmoil as the heaven of earth is under the control of both India and Pakistan.

What is Article 370?
Article 370 of the Indian Constitution gave special autonomous power to the state of Jammu and Kashmir. It is a 'temporary provision' under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special Provisions." It states that all the provisions of the Constitution which gave power to the central government would be applicable in the valley only after the consensus of state legislative assembly. This temporary provision was made till the adoption of the state Constitution but unfortunately, the legislature itself dissolved without any amendment to Article 370. 

In 2018, Kumari Vijayalakshmi Jha vs Union of India & Anr, the Supreme Court has ruled that Article 370 has acquired permanent features in the Indian Constitution. Similarly, in the State Bank of India v Santosh Gupta, the Supreme Court gave the same ruling of a permanent feature.  India needs Jammu & Kashmir government's nod for applying laws in the state except in the case of defense, foreign affairs, finance, and communications. The laws of the state in case of fundamental rights, property and citizenship are totally different from the rest of India. The concurrence was only provisional as the ratification of the Constituent Assembly is required. This article can only be scrapped after the ratification of the State Constituent Assembly. The state has the full legitimate power to make laws in relation to welfare measures, cultural measures, personal law, and procedural law. 

Power of President and Scrapping of Article 370
As per Article 370, the President has the power to apply other provisions of the Constitution subject to certain modifications as President by order may specify due to Article 370. He can’t issue any order without the consent of the state legislature. 

The President issued The Constitution (Application to Jammu and Kashmir) Order, 2019 which superseded the Constitution (Application to Jammu and Kashmir) Order, 1954. The person recognized by the President of India on the advice of the State Legislative Assembly will be now known as Governor of Jammu and Kashmir which formally referred to as Sadar-i-Riyasat of Jammu and Kashmir. It added a clause in Article 367 which now states that Constituent Assembly is now State Legislative Assembly. The Constitution of the state is now referred to as Constitution only. The Government of the valley will include the Governor acting on the advice of the Council of Ministers. 

As per Article 370(3), the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. Since June 2018, under Article 92 of the Constitution of Jammu and Kashmir, the valley was under Governor’s rule as BJP ended its coalition with PDP. After 6 months in December 2018, the state was under President Rule which is Article 356 of the Indian Constitution. It implies that the power of the state government means the power of the Central government. It means the Government wrote an order to itself for “concurrence” and President signed the order.

Legal Challenges to President Order 
The President has overreached his power entrusted to him under Article 370(1)(d). Article 370 is basically a temporary provision that was added to integrate Jammu and Kashmir into the Union of India. Only two Articles i.e. Article 370(1)(c) and 370(1)(d) deals with the application of the Indian Constitution into the valley. Article 370(1)(c) states that Article 1 and Article 370 shall be applicable to the state. Article 370(1)(d) states that President may by order specify that other provisions of the Constitution will be applied in the state with such “modifications”. 

As per Article 370(1)(d), President is required to take concurrence of Jammu & Kashmir Government before issuing such notification. Similarly, Article 370(3) requires the recommendation of Jammu & Kashmir Constituent Assembly if President declares whole Article 370 inoperative. Since the concurrence of Jammu & Kashmir Government is required but the Legislature is dissolved and was under President Rule, this was effectively dispensed with. The Government has cleverly interpreted Jammu & Kashmir Constituent Assembly as Jammu & Kashmir Legislative Assembly so that Jammu & Kashmir Legislative Assembly can abrogate Article 370 which was not done by Constituent Assembly. The President has overreached its power what is defined in Article 370 as per Keshavandana Bharti Case, the Constitution heads cannot use the powers to do what Constitution has never meant.

Conclusion
The matter of the special status of Jammu & Kashmir was debatable throughout the 70 years of independence of the country. Because of this special status, Kashmiri people have no feeling of nationalism as separatists continue to create violence in the valley and asserted to people that they are not part of India. This is a fallacy as per Article 3 of the Constitution of Jammu & Kashmir, the state is an integral part of India. The valley which is described as the heaven of the earth has no investment or industrial development because of terrorism which has created fear among investors. Hence, it can be said that the removal of Article 370 can bring peace and order in the state and can bring a feeling of nationalism among Kashmiri people.

References
  1. The Constitution (Application To Jammu And Kashmir) Order, 2019 (The Gazette of India, 5 August 2019) <http://egazette.nic.in/WriteReadData/2019/210049.pdf> as accessed on 11 August 2019.
  2. Mehr Gill, ‘Explained: The significance of 1846 in the modern history of Jammu and Kashmir’ (The Indian Express, 10 August 2019) <https://indianexpress.com/article/explained/explained-the-significance-of-1846-in-the-modern-history-of-jammu-and-kashmir-5895021/> as accessed on 11 August 2019.
  3.  (2017) 2SCC 538. 
  4. Article 370, The Constitution of India, 1950.
  5. Jeet H Shroff, ‘Four Reasons Why Not President Order Is Not Kosher, Yet’ (The Hindu Business Line, 6 August 2019) <https://www.thehindubusinessline.com/opinion/three-reasons-why-the-presidential-order-on-kashmir-is-not-kosher-yet/article28836245.ece> as accessed on 11 August 2019.


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