Article 370 and special status of Jammu & Kashmir

Article 370 of the Indian Constitution grants a special status to the State of Jammu & Kashmir. As compared to the other States of Indian Union, the Article 370 gives an autonomous status to the State of Jammu & Kashmir.

Though, the Article was initially drafted temporarily empowering the constituent assembly of the State to recommend the articles of the Indian constitution to be applied to the state or to abrogate the Article 370 altogether.

However, the State constituent assembly dissolved itself without recommending abrogation. As a result, the Article 370 deemed to have become a permanent feature of the Indian Constitution.

However, the High Court of Jammu & Kashmir in Ashok Kumar & Others v. Presidentof India & Others (decided on October 9, 2015) held that, the special status of the State of Jammu & Kashmir conferred under the Article 370 of the Constitution of India cannot be altered by way of abrogation, repeal or amendment.

While delivering the judgment the Court observed that, Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States that signed Instrument of Accession with India.

Honourable Court came to such a conclusion based on the rationale that power had been conferred upon the Constituent Assembly of 1957 to recommend the President as to ceasing or modification of operation of the provision. Since, the Constituent Assembly had not made such a recommendation before its dissolution (i.e., on January 25, 1957), provision was rendered permanently irrevocable.

By virtue of Article 370 (1) of the Indian Constitution;

Notwithstanding anything contained in this Constitution –

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized 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 advice of the Council of Ministers of the State for the time being in office.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provison to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, 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.