Article 370 of Indian Constitution
According to the Constitution of India, Article 370 provides provisional provisions to the state of Jammu & Kashmir, allowing it special autonomy.
1. The article says that the provisions of Article 238, which was deleted from the Constitution in 1956 when Indian states were reorganised, shall not applicable to the state of Jammu and Kashmir.
2. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370. But in 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the draft of a suitable article to be included in the Constitution. Article 370 was finally drafted by Gopalasami Ayyangar who was a minister without portfolio in the first Union Cabinet of India and happened to be the former Diwan to Maharajah Hari Singh of Jammu and Kashmir.
3. Article 370 is drafted in Amendment of the Constitution section, in Part XXI (21), under Temporary and Transiti0nal Provisions.
4. The original draft explained "the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the instructions of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated on 05.03.1948."
5. On November 15, 1952, it was changed to "the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the guidelines of the Council of Ministers of the State for the time being in office."
Why it was Incorporated
For a variety of reasons Kashmir, different from other princely states, was not yet ripe for integration then. India had been at war with Pakistan over Jammu and Kashmir and
while there was a cease-fire, the conditions were still "unusual and abnormal" because a part of the State's territory was in the hands of "rebels and enemies."
The involvement of the United Nations brought an international dimension to this conflict, an "entanglement" which would end only when the" Kashmir problem is satisfactorily resolved."
Ayyangar negotiated - with Nehru's backing - the substance and scope of Article 370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Beg and Maulana Masudi), Patel was very much in the loop. And while Sardhar Patel was deeply sceptical of a "state becoming part of India" and not "recognising [India's] fundamental rights and directive principles of State policy."
Indeed, with the synergy that Patel and Nehru brought to governing India is evident in the negotiations over Article 370 in October 1949, whereby they navigated most of the amendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.
Autonomy as Envisioned
A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential 0rder and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the consequential series of Presidential Orders have made most Union laws applicable to the State. Today, virtually, there is no institution in India that does not include J&K within its scope and jurisdiction. The substantial differences compared to other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of" internal disturbance" without the concurrence of the State; and the name and boundaries of the State, which cannot be modified without the consent of its legislature. In that case, J&K is not unique; there are special provisions for other States listed in Article 371 and Articles 371-A to 371-1.
Revoking Article 370
Clause 3 of Article 370 is clear. Article 370 of Indian Constitution can be revoked only if a new Constituent Assembly of J&K is convened and is willing to recommend its revocation. Of course, Indian Parliament has the power to amend the Constitution to change this provision. However, this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre cannot, therefore, be amended.
Article 370 itself is gender neutral, but the meaning of Permanent Residents in the State Constitution is based on the notifications issued in April 1927 and June 1932 - included an explanatory note which said: "The wife or a widow, of the State Subject shall obtain the status of her husband as State Subject of the same Class as her Husband, s0 long as she resides in the State and does not leave the State for permanent residence outside the State, was thought to be discriminatory. It suggested that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark decision, in October 2OO2, the full bench of J&K High Court, with one judge disagreeing, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enj0y all rights, including property rights.
Separatism grows when people feel disconnected from the structures of power and the process of policy formulation. In contrast, devolution guarantees popular participation in the running of the polity. It can be reasonably debated that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State. Not unexpectedly, at the opposition conclave in Srinagar in 1982, leaders of almost all national parties, comprising past and present allies of the BJP, declared that the "special constitutional status of J&K under Article 370 should be preserved and protected in letter and spiŕit." A study of its policy on Article 370, would be good to bring lasting peace and economic development in the land.
Hope for Future
Article 370 is about empowering people, making the citizens know and feel where they belong, and about increasing the accountability of public institutions and services.