Post-1957, President retains power to scrap Article 370: SC

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1. Post-1957, President retains power to scrap Article 370: SC

Syllabus: Indian Constitution

Why in NEWS

The Supreme Court on Wednesday raised the question whether the President’s power to declare inoperative Article 370 of the Constitution, which granted special status to Jammu and Kashmir, will not continue to hold the field after the dissolution of the erstwhile State’s Constituent Assembly on January 26, 1957.

Constitutional Provisions

• Clause (3) of Article 370 gave the President power to notify the Article “inoperative” or modify it. But a proviso had made it “necessary” that such a move would have to be recommended by the Jammu and Kashmir (J&K) Constituent Assembly.
• A Constituent Assembly is not a permanent body like the Parliament and the Supreme Court. No Constituent Assembly can have an indefinite life… The J&K Constituent Assembly was constituted for a specific purpose — to draft the Constitution of J&K. It became functus officio once the J&K Constitution was framed… This proviso making the Constituent Assembly’s ‘recommendation’ necessary before abrogation has no application. If the proviso ceased to operate, surely the substantive part of Clause 3 in Article 370 will remain

Article 370

• Article 370 of the Constitution of India was a temporary provision that gave special status to the state of Jammu and Kashmir.
• It was inserted into the Constitution on 17 October 1949, shortly after India’s independence from British rule.
• The article exempted Jammu and Kashmir from the complete applicability of the Constitution of India.
• The state was conferred the power to have its own constitution.
• Central legislative powers over the state were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
• Other constitutional powers of the Central Government could be extended to the state only with the concurrence of the State Government.
• The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
• Article 370 also gave special privileges to the permanent residents of Jammu and Kashmir in matters such as residence, property, education and government jobs.
• These privileges were not available to non-permanent residents, including those who were citizens of India.
• Article 370 was a controversial provision, and there have been calls for its abrogation for many years.
• In August 2019, the Government of India revoked Article 370, effectively stripping Jammu and Kashmir of its special status.
• The decision was met with widespread protests in the state, and it remains a highly sensitive issue.

Here are some of the key provisions of Article 370:

• The state of Jammu and Kashmir was not to be a part of the Indian Union in the same way as other states.
• The state was to have its own constitution.
• The power of Parliament to make laws for the state was limited to the three subjects of defence, foreign affairs and communications.
• Other constitutional powers of the Central Government could be extended to the state only with the concurrence of the State Government.
• The state was to have its own flag.
• The permanent residents of the state were to have special privileges in matters such as residence, property, education and government jobs.

Article 370 was a complex and controversial provision, and its abrogation has had a significant impact on the state of Jammu and Kashmir. It remains to be seen how the long-term implications of this decision will play out.