Article 370 of the Indian constitution gave special status to Jammu and Kashmir, a region located in the northern part of Indian subcontinent which was administered by India as a state from 1954 to 31 October 2019, conferring it with the power to have a separate constitution, a state flag and autonomy over the internal administration of the state. The Indian-administered Jammu and Kashmir is part of the larger region of Kashmir which has been a subject of dispute since 1947 between India, Pakistan and, partly, China.Article 370 was drafted in Part XXI of the Indian constitution titled “Temporary, Transitional and Special Provisions”. It stated that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian constitution would apply to the state. The state assembly could also abrogate Article 370 altogether, in which case all of Indian Constitution would have applied to the state.
After the state constituent assembly was convened, it recommended the provisions of the Indian constitution that should apply to the state, based on which 1954 Presidential Order was issued. Since the state constituent assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
The net effect was that the Jammu and Kashmir state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in Jammu & Kashmir.
When Article 370 was originally created, only two articles of the Indian Constitution applied in full to Jammu and Kashmir. Other provisions of the Constitution would apply with exceptions and modifications specified by the President in his Order in consultation with or the concurrence of the government of the state. In exercise of these powers, as conferred by clause of article 370 of the Constitution, the President made a series of orders with the concurrence of the Government of the State of Jammu and Kashmir.
In addition to these original orders, forty-seven Presidential orders were issued between 11 February 1956 and 19 February 1994, making various other provisions of the Constitution of India applicable to Jammu and Kashmir. All these orders were issued with the ‘concurrence of the Government of the State’ without any Constituent Assembly.[note 4] Some of these Presidential orders were issued when the state was under President’s rule and had “no Kashmir government at all”, states Jill Cottrell. The concurrence in this instance was given by the Governor of the state, a nominee of the Union government. Such an interpretation[which?] was upheld by the Supreme Court of India in 1972.[note 6]
The effect of the Presidential orders issued since 1954 had been to extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India. All of these orders had been issued as amendments to the Presidential Order of 1954, rather than as replacements to it, presumably because their constitutionality was in doubt, according to Cottrell.
This process has been termed the ‘erosion’ of Article 370. Home minister Gulzarilal Nanda (1963–1966) opined that the terms for the “special status” granted to Jammu and Kashmir in this Article included a “very simple” process to amend, by an Executive Order of the President of India, whereas the powers of all other states could only be amended by the “normal process of (constitutional) amendment, subject to stringent conditions”. According to him, Article 370 was “the only way” of taking the Constitution of India into Jammu and Kashmir, it is a tunnel through which “a good deal of traffic has already passed and more will”. The successors of Nanda in the Home Ministry have interpreted the Article in the same manner.
Article 370 acknowledges the special status of the state of Jammu and Kashmir in terms of autonomy and its ability to formulate laws for the state’s permanent residents.[note 7] In the 1954 Presidential order, among other things, the Fundamental Rights in the Indian Constitution were made applicable to Kashmir with exceptions. Later amendments, states Cottrell, modified the applicability of basic human rights in the Indian Constitution to permanent residents of Jammu and Kashmir.[clarification needed] The state legislature further modified these, as well as added “preventive detention laws” that it exempted from human rights challenges for twenty-five years. Further, the state gave special privileges to the permanent residents in matters such as residence, property, education and government jobs, which were unavailable to others. Article 35A of the Indian constitution has been interpreted by some Kashmiri officials to disallow challenging any state law, merely on the ground of infringing upon rights, granted to all citizens of India via the national constitution.
Education and employment rights
The state government officials of Jammu and Kashmir have issued “permanent resident certificates”. However, these certificates differ by gender. The certificates issued to females are marked “valid only till marriage”, while certificates for males have no such markings. If a woman married an Indian outside of Kashmir, she was denied a new certificate. These certificates are required by the Jammu and Kashmir state officials from anyone seeking to acquire immovable property, education or employment within the state.Under the state laws, the Jammu and Kashmir High Court quashed the appointment of Susheela Sawhney in 1979 – a Kashmiri-born woman, as assistant professor in the Government Medical College because she was married to a man outside of Kashmir. Numerous other women – such as Sunita Sharma, Anjali Khosla, Abha Jain, Kamla Rani, Reeta Gupta, and others – sued the state government on different but related matters, charging discrimination based on their gender. These cases were reviewed in 2002 by the full bench of the state’s High Court, which overturned the past rulings and found that the state has discriminated based on gender. According to Cottrell, the autonomy and special status granted to the state of Jammu and Kashmir makes it possible “for it to have rather lower standards of human rights”.
In 2004, the Jammu and Kashmir Legislative Assembly passed the Permanent Residents (Disqualification) Bill – also known as the Daughter’s Bill. The new law sought to deprive daughters of the state’s permanent residents[note 8] of all their native-born rights and privileges if they marry someone who is not the subject of Jammu and Kashmir. This law applied only to the female descendants of Kashmir subjects, and does not apply to the male descendants.
According to Sehla Ashai, per its provisions, “the women who married non-state subjects men from other states of India or abroad] could no longer claim state subject status, would thereby lose both preferential treatment in government hiring and the ability to acquire new property in the state”. The opponents to this bill argued that this is a “violation of Kashmiri women’s fundamental rights under the Indian Constitution” and that the bill discriminated human beings by their gender.The supporters argued that if this bill failed to pass it “would be the end of constitutionally guaranteed autonomy for Jammu and Kashmir” and that the law was created to “protect the ethnic identity of the people of Jammu and Kashmir”.The bill was supported by the state-based Jammu & Kashmir National Conference Party and Jammu and Kashmir Peoples Democratic Party, but challenged by the Indian National Congress party. It was reintroduced in J&K legislative houses in August 2004 as an amendment to the state constitution, but it failed to pass the Upper House of the state by the required two-thirds majority.
In 2010, the Permanent Residents (Disqualification) legislation was reintroduced in the state’s legislative houses, with support from the two main state-based parties. It again attracted criticism that “such bills have no sanction in the legal and constitutional history of the state or in Article 370”.
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