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Article 370

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Topics Covered:

  1. Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
  2. Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
  3. Role of external state and non-state actors in creating challenges to internal security.
  4. Security challenges and their management in border areas; linkages of organized crime with terrorism.

 

Article 370

 

What to study?

  • Static Part: Key features of Article 370 and related facts.
  • Dynamic and Current: Arguments in favour and against the removal of Article 370, what is the right move and can an amendment solve the issue?

 

Context: The Supreme Court has refused to entertain a fresh petition on Article 370, which gives special autonomous status to Jammu and Kashmir, and said that the issues raised in it were already part of the pending pleas.

 

What was the plea all about?

The petition sought a declaration that Article 370 of the Constitution had lapsed with the dissolution of constituent assembly of Jammu and Kashmir on January 26, 1957 and it cannot be treated as mandatory for exercise of powers of the President.

  • The plea has also sought that the Constitution of Jammu and Kashmir be declared as “arbitrary, unconstitutional and void”, claiming that it was against the supremacy of the Indian Constitution and contrary to the dictum of “One Nation, One Constitution, One National Anthem and One National Flag”.
  • It has sought declaring as arbitrary some provisions of the Jammu and Kashmir Constitution, which deals with permanent residency and flag of the valley among other issues, for being violative of the Preamble and the Indian Constitution.
  • The petition has said that continuance of two parallel constitutions, one for the Centre and other for the state of Jammu and Kashmir, “reeks of a weird dichotomy” as most of the provisions of the Indian Constitution has already been extended to the state.
  • It has alleged that due to vote bank politics, successive governments did nothing to repeal Article 370 and Constitution of Jammu and Kashmir was adopted much after the Indian Constitution came into force. It also added that the instrument of accession of October 26, 1947 does not talk about separate Constitution or constituent assembly for the state.

 

What is Article 370?

Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir.

Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of Jammu & Kashmir has been accorded special status under Article 370.

  • All the provisions of the Constitution which are applicable to other states are not applicable to J&K.

 

Important provisions under the article:

According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.

  • Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
  • Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
  • Under Article 370, the Indian Parliament cannot increase or reduce the borders of the state.
  • The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir is confined to the matters enumerated in the Union List, and also the concurrent list. There is no State list for the State of Jammu and Kashmir.
  • At the same time, while in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary powers belong to the Legislature of the State, except certain matters to which Parliament has exclusive powers such as preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of India.
  • The power to make laws related to preventive detention in Jammu and Kashmir belong to the Legislature of J & K and not the Indian Parliament. Thus, no preventive detention law made in India extends to Jammu & Kashmir.
  • Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K.

Sources: the hindu.

Mains Question: Critically comment on the history of Article 370 of the Indian Constitution, its implications and relevance for the Union of India.