“What is left of Article 370 that needs to be abrogated?” The obverse of this question is: “What are the regional parties falling over each other to defend long after the damage has been done?” The Constitutional nuances and legal debates aside, it is instructive to factually look at what protection Article 370 accords and what privileges it grants to the J&K state and its people. A look at ten “privileges” that supposedly make J&K an “autonomous” unit in theory, practice is quite another matter, shows that Article 370 is now nothing more than a husk; the seed has been long taken out. I. J&K has its own Constitution: The Constitution of Jammu and Kashmir, has been overridden by various Constitutional Orders issued by the President of India. Out of the total number of 395 articles, 260 have been applied to the J&K Constitution. The remaining 135 are the identical to the Indian Constitution. The most damaging application, one which impairs the efficacy of the J&K Constitution is the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1975. On 23th July, 1975 the President issued this Order, under Article 370(1), debarring the state legislature from amending the State Constitution on critical matters like the Governor, composition of the state legislature (both upper and lower house) and the Election Commission. It is farcical to have a Constitution which is not only overridden but its powers have been curtailed such that it can’t even be amended by the elected representatives of the people whose Constitution it is. II. J&K has its own flag, the “National Flag of J&K”. On 7th of June, 1952, a resolution was passed which deleted the word “National” occurring before the word Flag. Thereby, it was reduced to being a government flag rather than the flag of an autonomous state. It was explicitly made subservient to the National Flag of India. III. In its original form, under Article 370, state subjects of J&K were not citizens of India. This was altered on 3rd February, 1954. The Basic Principles Committee recommended to the Constituent Assembly of J&K that the provisions of part II of the Constitution of India relating to Citizenship should be applied to the state. On May 15, the Constitution (Application to J&K) Order, 1954 stipulated that the people of J&K are citizens of India with retrospective effect from 1950. IV. The entry of Indian Nationals into J&K was restricted and goods from India had to pass through a customs barrier by paying import duties. The permit system that restricted the entry of Indian nationals from other parts of the country was abolished in April 1, 1959. The customs barrier that existed between J&K and India was removed on 27th February, 1958 by Constitution (Application to Jammu and Kashmir) Order 1958. The powers of the Parliament were extended to define and formulate principles for determining when a sale and purchase of goods takes place in the course of inter-state trade. V. The people of J&K were not obliged to uphold the “integrity and sovereignty of India”. This was made obligatory with effect from 3rd January, 1977 following the Constitution (Forty-second Amendment) Act, 1976., VI. The Constitution of the State, provided for a Head of the State, Sadar-i-Riyasat, elected by the members of the state legislature. On November 24th 1966, through the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965 the elected Sadar-i- Riyasat was replaced by the Governor who is a nominee of the Central government. VII. J&K had residuary powers. Parliaments power of legislation with regard to J&K was limited to the items on the Union List. These too were subject to the constraint of Article 370. The residuary powers were with the state. On July 30th 1986, the President made an order under Article 370, extending to J&K Article 249 of the Constitution in order to empower Parliament to legislate even on matters in the state list. As a result the Union acquired the powers to legislate not only on state list but others not mentioned in the Union list and the concurrent list. This ended the residuary powers of the state. VIII. The Supreme Courts original jurisdiction was restricted only to Article 131 dealing with disputes between the Union and the states. In all other matters, the apex court was given only appellate jurisdiction. On 22nd July, 1960, the Constitution (Application to Jammu and Kashmir) Second Amendment Order 1960, empowered the Supreme Court to review laws made by the State Legislature. The Court has the power to review the decisions of the High Court of Jammu and Kashmir. The powers of judicial review exercised by the Supreme Court are quite extensive including the administrative action undertaken by the State Government. IX. J&K government had complete and exclusive control over all the taxes. The income tax department of J&K was free from all central controls. The state had its own customs as well as excise department. There was no “financial integration” between J&K and India. Article 280 relating to the finance commission was not applicable to J&K, not to speak of the Planning Commission. Through the Presidential Order of May 1954, this was arrangement was repealed and J&K was made to give up all its power of direct taxation, including income tax, excise and custom duty. J&K cannot levy income or corporation tax anymore. The complete financial integration of the state with India was brought about in 1956. X. J&K had the right to have their own currency. Reserve Bank of India had no jurisdiction even as a banking regulator let alone as the monetary manager. This was changed in 1956 through The Jammu and Kashmir (Extension of Laws) Act, 1956 (62 of 1956). On September 1, 1972, Section 21 A of the RBI Act was invoked to make RBI a debt manager. From April 1, 2011, RBI’s role was fully and completely extended to the state by giving it powers to conduct general banking business of the Government of J&K and act as the sole agent for investment of Government’s funds. This ended the fiscal autonomy of the state. This is just a sample list. There are many more examples to show how impotent and imbecile Article 370 has been rendered over the years. Indeed, it has been convincingly and conclusively shown by experts that J&K, far from enjoying a special status as stipulated in Article 370, has been put in a status inferior to that of other states.
Posted on: Thu, 10 Apr 2014 07:05:02 +0000
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