Saturday 18 July 2015

Article 370 | Jammu and Kashmir

Why in news?
In a judgment that would safeguard the special status of Jammu and Kashmir under Article 370, the J&K High Court Friday said that the constitution of the state is “sovereign in character” and the Assembly exercises sovereign power to legislate laws. The court also said that the “sovereign character” of the state cannot be challenged or abridged.
  • The J&K court gave its verdict on a petition regarding the applicability of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) in the state. 
    • The SARFAESI Act, 2002, enacted and enforced by the Indian Parliament in 2002, empowers banks and financial institutions to recover their non-performing assets without the court’s intervention. 
  • The High Court said this Act cannot be applied to J&K, but suggested that the state can have its own law on the lines of the SARFAESI Act. 
    • WHY: Because through Parliament has power to enact laws on banking, it has no power to legislate law about the subject of administration of justice, the land and the other immoveable properties.
What is Article 370?
  • Defines the provisions of the Constitution of India with respect to Jammu and Kashmir. 
  • 'temporary provision' which grants special autonomous status to Jammu and Kashmir. 
    • Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the state of Jammu and Kashmir has been accorded special status under Article 370.
  • Except for Defence, Foreign Affairs, Finance and Communications -Indian Parliament needs the State Government's concurrence for applying all other laws
    • So J&K citizens live under a separate law - including those related to:
      • citizenship
      • ownership of property - Indian citizens from other states can not purchase land or property in Jammu & Kashmir.
      • fundamental rights, as compared to other Indians
  • Non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; 
    • It can declare emergency in the state only in case of war or external aggression. 
    • Centre has no power to declare financial emergency under Article 360 in the state.
  • Name and boundaries of the State, which cannot be altered without the consent of its legislature. 
  • Almost all constitutional authorities in J&K – including the Governor, council of ministers, legislators, Speaker, High Court judges, etc. – are creations of, and function under the constitution of J&K.
  • Article 144 of the J&K constitution describes the flag of the state.
    • In 2007, the state assembly had passed an amendment moved by a National Conference legislator, making the State Honour law tougher – failure to display the state flag with due respect now attracts a year in jail and a fine.
Why it was incorporated?
  • The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed Prime Minister of Jammu and Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. 
  • Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). 
  • Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” 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.” 
  • Finally, Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” 
  • In sum, there was hope that J&K would one day integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article), but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.
    • Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted 'iron clad autonomy' for the state, which Centre didn't comply with.
Did Sardar Vallabhbhai Patel oppose Article 370?
  • Patel was deeply sceptical of a “state becoming part of India” and not “recognising ... [India’s] fundamental rights and directive principles of State policy."
  • But it was Patel finally who managed the crisis and 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.
Is Article 370 still intact in its original form? 
  • The "autonomy" has been diluted
    • A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order 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 subsequent series of Presidential Orders have made most Union laws applicable to the State. 
    • In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. 
  • The only substantial differences from many 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 altered without the consent of its legislature. 
  • Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Can Article 370 be revoked unilaterally? 
  • Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. 
  • Of course, Parliament has the power to amend the Constitution to change this provision. 
    • But 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 and cannot, therefore, be amended.
Is Article 370 a source of gender bias in disqualifying women from the State of property rights?
  • Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory.
  • However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, 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 enjoy all rights, including property rights.
Has Article 370 strengthened separatist tendencies in J&K? 
  • NO
  • Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. 
  • It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. 
  • Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. 
  • There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.
  • Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State.
Presidential orders:
  • 54 orders since 1954 -  
  • The central government, through these Presidential orders, extended 94 out of 97 entries in the Union List to J&K, and made applicable to the state 260 out of 395 articles of the Indian Constitution. 
  • It is these orders that have over the years overridden the provisions of the J&K Constitution — 
    • they have been used to replace the elected Sadr-e-Riyasat (President of the State) with a Governor chosen by the Centre
    • change the ‘Prime Minister’ of the state to Chief Minister
    • extend the powers of the Supreme Court and Election Commission to J&K. 
    • One such Presidential order was, in fact, issued to prevent the state Assembly from making any amendment to the J&K Constitution. 
  • The Presidential orders have actually been extremely handy for New Delhi in J&K. For example, unlike in the case of Punjab, in which Parliament had to amend the Constitution repeatedly to impose President’s rule, the Centre has managed to impose direct rule on J&K through these Presidential orders. 
The issue of Article 35A
  • The provision that empowers the J&K legislature to define “permanent residents” of the state was added to the Constitution through the ‘Constitution (Application to Jammu and Kashmir) Order, 1954’, issued under Article 370. 
  • The Presidential order superseded an earlier order issued in 1950, which had provided a framework for the division of the powers between J&K and the Centre under Article 370.
  • What is the planned challenge based? The J&K Study Centre says Article 35A is unconstitutional because it was added by a Presidential order, without the approval of Parliament. 
    • It was Article 35A, not Article 370, that barred citizens from across the country from settling in J&K.” 
  • If the mother of all Presidential orders — the order of 1954 — goes, J&K can, in theory, return to the pre-1954 constitutional arrangement, where the Centre’s powers were restricted to Defence, Foreign Affairs and Communications alone.

[Sources: The Hindu, Indian Express, Times of India]


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