Kashmir – Article 370

Explanation of Article 370*

Clause (1) (d) ‘Modifications’. the power to modify includes the power to enlarge or add to an existing provision, or to abrogate it if necessary. It is coextensive with the power to amend and is not confined to minor alterations only.

Article 370 is a special provision for amending the constitution in its application to the State of J&K. Article 368 does not curtail the power of the President under Article 370.

Article 246 has been applied only with the modifications to the States of Jammu and Kashmir. As a result, the State Legislature of J&K has a residuary power of legislature over matters which may not be enumerated in the state list or the concurrent list, the only limitation is that it must not be within the exclusive jurisdiction of Parliament.

V K Shukla** has discussed the evolution and application of the Article 370 of Indian Constitution which it is felt to reproduce hereunder;

In order to appreciate the provisions of Article 370 of the constitution, it is necessary to give briefly the constitutional changes that took place in the State of Jammu and Kashmir. In the letter dated 26 October 1947 addressed to the Governor General, the Maharaja of Jammu an Kashmir, Hari Singh, offered to accede to Dominion of India. On October 27, 1947 the Governor General accepted the offer with certain stipulations. On 5 March 1948 the Maharaja issued a proclamation forming a responsible Government of the Council of MInisters headed by the Prime Minister which was to take steps to constitute a National Assembly based on adult franchise to frame the constitution for the State. On 25 November 1949, Yuvraj Karan Singh, to whom the power was entrusted by the Maharaja issued a proclamation directing that the Constitution of India be adopted by the Constituent Assembly of the State in so far as it was applicable to the State of Jammu and Kashmir in order to govern the relationship of the State and the contemplated Union of India (UOI), the Constitution of India was adopted on 26 November 1949 and on the same day certain provisions came into force and the remaining provisions came into force on 26 January 1950. Article 370 of the Constitution of India dealt with the relationship of State of J&K with the UOI. On 26 January 1950 the Constitution (Application to J&K) order 1950 was issued by the President. On 20 April 1951  the Maharaja issued a proclamation in pursuance of which the Constituent Assembly of the State was convened on 5 November 1951. On 10 June 1952 the Basic Principles Committee of the Constituent Assembly of the State submitted the interim report and recommended that ;

(i) the form of the future Constitution of J&K shall be wholly democratic,

(ii) the institution of hereditary rulership of J&K shall be terminated , and,

(iii) the office of the head of the State shall be elective.

The constituent Assembly of the State  by a resolution adopted those recommendations .The relevant part of the resolution is as follows;

1(i) That the head of the State shall be the person recognised by the President of the Union on the recommendation of the Legislative Assembly of the State,

(ii) He shall hold office during the pleasure of the President,

(iii) He may by writing under his hand addressed  to the President , resign his Office,

(iv) Subject to the foregoing provisions the Head of the State shall hold office for a term of five years from the date he enters upon his Office.

On 14 May 1954, in exercise of powers conferred by Article 370 (1) of the Constitution of India, the President with the concurrence of the government of the State made the Constitution (Applicable to J&K) Order 1954. It suppressed the earlier order of 1950, and extended the application of various provisions of the Constitution of India to the State. One such article was Article 368 but a proviso was added to the effect that “no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article 370. On 17 November 1956 the Jammu and Kashmir Constitution was applied. Some sections of the Constitution came into force on the day and the remaining came into force on 26 January 1957.

*Durga Dass Basu, Shorter Constitution of India, 1988, Prentice Hall, New Delhi

**V K Shukla, Constitution of India,  rev by Mahendra P Singh, Lucknow 1998

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