- Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
- 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.
What to study?
For Prelims: Key features of Article 370 and related facts.
For Mains: Arguments in favour and against the removal of Article 370, what is the right move and can an amendment solve the issue?
Context: The government has said that Article 370, which provides for special status to Jammu and Kashmir, is a temporary provision in the Constitution and Article 35A, which gives special rights to the natives of the state, was added through a Constitution order issued by the President of India.
The reply came in response to a question on whether the government is going to repeal articles 370 and 35A and whether repeal of these articles in any way violate United Nations regulations or any international obligation of the country.
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 concurrencefor 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 powerssuch 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 & Kand 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.
How should the centre counter the growing unrest in the region?
- Focus on investing in J&K’s infrastructure.
- Absence of an effective information and communication plan has hobbled the government’s ability to respond even when it is on the moral high ground. This must be immediately corrected.
- Standard operating procedures must require the use of lethal force only when there is an imminent threat to life and property, force should be used proportionately and not as a punitive measure.
- What is needed at the moment is the deployment of new socio-cultural resources, and a new operational cultureto wind down the militancy without alienating more locals who could either join or influence their relatives and friends to join various terrorist organisations.
- Lethal force should be the last resort, used only when lives are threatened. Promptly investigating allegations of abuses and prosecuting those responsible is key to resolving this mess.
- Externally, wide-ranging peace talks between India and Pakistan, the Indian administration and ‘azaadi’ groups is needed and internally, peace-building on the ground by multiple stakeholders involved is necessary.
Article 35 A: It lets the J&K Legislature decide the “permanent residents” of the State, prohibits a non-J&K resident from buying property in the State and ensures job reservation for its residents.
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.