Article 370 and the Constitution of Jammu & Kashmir

The roots of the special status given to the State of Jammu and Kashmir lie in the Treaty of Amritsar which was signed after the First Anglo-Sikh war. The East India Company annexed the Kashmir valley and sold the land to Maharaja Gulab Singh, the Dogra king of Jammu. Also, as a reward for his cooperation with the victorious British in the Anglo-Sikh War, the state of Jammu and Kashmir was granted a “sovereign state” status under the British paramountcy.

When India and Pakistan gained independence on 15th and 14th August respectively, the princely state of Jammu and Kashmir, under the rule of the Dogra ruler, Maharaja Hari Singh, chose to maintain the state’s autonomy and wanted both the countries to recognize it as a princely state. It was only when the Jammu and Kashmir forces could not avert an invasion by the frontier tribesmen supported by the Pakistani Army in the state’s border town of Domel that the Maharaja turned in desperation to India.

The Instrument of Accession thus signed, entrusted upon India the defence, communication, external affairs and such other ancillary functions on behalf of the State of Jammu and Kashmir. The Article 370 incorporated these provisions in the Part XXI  of the Indian Constitution though they were ‘temporary, transitional and special’ in nature, meaning, they were not permanent. These provisions aimed at safeguarding the identity of the people by decentralizing governance which would enable them to harmonize their aspirations with that of the nation as a whole. Arunachal Pradesh, Nagaland and many other states have been granted special status under Articles 371 to 371-I but none have the extent of autonomy that has been granted to J and K.

The people of J and K elected a Constituent Assembly in 1951 which adopted the Constitution of J and K and it came into force on the 26th of January, 1957.

Following are some of the provisions of Article 370 of the Indian Constitution:

• Jurisdiction of the Parliament: The Parliament’s power to make laws for the state are limited to only those matters in the Union and the Concurrent list which are related to the terms of the Instrument of Accession.
• Part IV (Directive Principles of the State Policy) and Part IV-A (Fundamental Duties) of the Constitution do not extend to J and K. The state has its own set of DPSPs which are not enforceable by the court.
• Right to property is a fundamental right in the state. Only permanent residents have the right to property and to vote. Permanent residents have special rights with respect to education, public employment, acquisition of immovable property etc.
• Emergency provisions: A National Emergency which has been declared only on the grounds of external aggression can be extended to the State. The Governor’s rule can be imposed in effect of the breakdown of the Constitution of the J and K. But since 1964, Article 356 regarding President’s Rule was also extended to the State. However, the Centre does not have power to declare a financial emergency under Article 360 of the Constitution of India.
• An amendment to the Constitution can be extended to the state only by the means of a Presidential order.

 Permanent Resident Certificates

In the 19th century, the state subject law prevented British colonialists from settling in the state or buying property owing to the autonomy of the state. The Dogra ruler had passed notifications in 1927 and 1932 which created a hierarchy between different classes of citizens for preference in grants of state scholarship, agricultural land and recruitment into state services. The definition of Permanent Resident according to section 6 of the State’s Constitution reaffirmed the criteria of the notifications. State Subject Certificates, also called Permanent Resident Certificates are issued to residents of the state. Only those individuals holding a certificate can own property, build a house, gain admission in professional colleges, apply for employment with the government, or vote for the Assembly poll in Jammu and Kashmir. Reportedly, in the case of girls, the certificates are only valid until marriage, whereupon, if the husband is a resident of the state, the woman has to reapply for a new certificate. On the other hand, a woman who is not a resident of Jammu and Kashmir who marries a resident of the state is entitled to those “state subject rights”.

In 2002, the High Court of J and K passed a landmark judgement stating that the daughter of a permanent resident of the state will not lose her right to property and other rights in the event of her marriage to a non-permanent resident and women’s permanent resident certificates would no longer be stamped with the words “Valid Only Until Marriage.” In 2004, the Permanent Resident Women Disqualification Bill was introduced in the J and K Legislative Assembly under a Special Leave Petition to the court’s judgement. It was passed by a voice vote in the Legislative Assembly but was couldn’t be passed in the Legislative Council as the session was adjourned sine die by the speaker. The Disqualification Bill was then re-introduced in August 2004 but failed to garner the necessary two-thirds vote to pass.

The Article 370 of the Indian Constitution is neutral on the gender issue as it deals with the special status of the State whereas the definition of property rights for State Subjects is a matter which falls under Section 6 of the J and K constitution.