Kashmir – Application of Article 370

The State of Jammu and Kashmir is a part of Indian territory (the ruler of J&K state executed the instrument of accession on 26 Oct 1947) and is included in the list of States in the first schedule of the Constitution but the position of this State differs from other States in following respects;

  • The provision dealing with the Governmental machinery in other States of the Union do not apply to the State of J&K.
  • The legislative authority of the Union Parliament in respect of this State is limited to those matters in the Union and Concurrent list which are declared by the President, in consultation with the Government of the State, to conform to the terms of the Instrument of Accession.
  • Only such of the provisions of the Constitution shall apply to this State as the President may by order specify.

Article  370 clearly recognises the special position of the State of Jammu and Kashmir and that is why the President is given the power to apply the provisions of the Constitution to the State subject to such exceptions and modifications as the President may by order specify. The President, thus, has power to say by order that certain provisions of the Constitution will be excepted from application to the State of Jammu and Kashmir and on such order being made those provisions would not apply to the State. Besides this power of making exceptions, the President is also given the power to apply the provisions of the Constitution with such modifications as he thinks fit. The meaning of the word ‘modification’ used in Article 370 (1) must be given the widest effect including making radical modifications.* The continued application of Article 370 was questioned in Sampat Prakash vs State of J&K [(1969) ISCC 562, IR 1969, SC 1956 ]. The main argument of the petitioner was based on the fact that Article 35 (C) of the J&K Constitution as initially produced by the Constitution (Application to J&K) order 1954, had given  protection to any law relating to preventive detention in Jammu and Kashmir against invalidity on the ground of infringement of any one of the fundamental rights guaranteed by the Part III of the Constitution for a period of five years only. Subsequently this period was extended first to ten years and later to fifteen years by Presidential Order of 1959 and 1964 respectively. These extensions were questioned by the petitioner on the ground that orders making such modifications could not be validly passed by the President under Article 370 (1). It was argued that the Article 370 could only have been intended to remain effective until the Constitution of the State was framed and thereafter it must be held to have become ineffective with the result that any modification made by the President subsequently to the enforcement of the Constitution would be without the authority of the law. The Argument was rejected by the Supreme Court relying mainly on clause 3 of Article 370, which lays down that Article 370 would cease to be operative or would be operative only when the President issues a notification to that effect on the recommendations of the Constituent Assembly of the State. It was found that no such recommendations had been made by the Constituent Assembly of the State. It was pointed out Article 370 should be held to be continuing in force because the situation that existed when the article was incorporated in the Constitution had not materially altered, and the purpose of of introducing this article was to empower the President to exercise his discretion in applying the Indian Constitution while the situation remained unchanged. A reference was also made to the proviso added to Article 368 of the Constitution in its application. Article 368 is of  no consequence in the State of J&K unless applied by the President under Article 370(1). The proviso thus reinforces the argument in favour of the continued operation of Article 370.

In Mohammed Maqbool Damnoo vs State of J&K (1972, ISCC,536, AIR 1972 SC 963), the petitioner challenged the validity of his detention under the J&K Preventive Detention Amendment Act 1967, on the ground that the Act is invalid as it has not been assented by the Sadre-Riyasat of J&K, acting on the advice of the Council of Ministers of the State for the time being in office. “Acting under Article 370 (1), the President with the concurrence of the Government of the State of Jammu and Kashmir made the Constitution (Application to J&K) Second Amdt Order 1965 to the effect that references to “the Sadari-Riyasat of the State” shall be construed as reference to the “Governor of the State”. According to the counsel on behalf of the petitioner  neither the State Assembly nor the President were competent to impair the functioning of the Sadari- Riyasat unless the Constitution of India is amended under Article 368 and 370 (3) or a fresh Constituent Assembly is convened to amend the explanation. This argument was not accepted by the Supreme Court. Chief Justice Sikri on behalf of the Court explained that the essential feature of Article 370 (1) (b) and (d) is the necessity of the concurrence of the State Government and the State Government is at a particular time , to be determined in the context of the Constitution of Jammu and Kashmir. The explanation in Clause (1) of Article 370 merely recognises the constitutional position in the State. The Chief Justice had no difficulty in holding that Article 370 (1) (b) and (d) places no limitation on the framing or amendment of the Constitution of J&K. It was pointed out that despite the change in the designation and the mode of appointment of the head of the State, the constitutional position in the State remained basically the same and that the Governor is the successor of the Sadari- Riyasat and can validly exercise his powers as Head of the State.**

*P L akhanpal vs President of India , AIR 1961, SC 1519,1520 (1962) ISCR 688

** V K Shukla, Constitution of India , REv 8th ed, rev by Mahendra P Singh (Lucknow 1998)

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