Article 370, 356 n Kashmir Issue

8/10/2019 Article 370, 356 n Kashmir Issue

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Article 370 was and is about providing space, in matters of governance, to the people of aState who felt deeply vulnerable about their identity and insecure about the future.

At the Bharatiya Janata Partys recentLalkarrally in Jammu, its prime ministerial candidate, NarendraModi, called for a debate on Article 370. This is encouraging and suggests that the BJP may be willing toreview its absolutist stance on the Article that defines the provisions of the Constitution of India withrespect to Jammu and Kashmir. Any meaningful debate on Article 370 must, however, separate mythfrom reality and fact from fiction. My purpose here is to respond to the five main questions that havealready been raised in the incipient debate.

Why it was incorporated

First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana HasratMohini, asked in the Constituent Assembly on October 17, 1949: Why this discrimination please? Theanswer was given by Nehrus confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami

Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singhof Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety ofreasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war withPakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still unusual andabnormal. Part of the States territory was in the hands of rebels and enemies.

The involvement of the United Nations brought an international dimension to this conflict, anentanglement which would end only when the Kashmir problem is satisfactorily resolved. Finally,

Ayyangar argued that the will of the people through the instrument of the [J&K] Constituent Assemblywill determine the constitution of the State as well as the sphere of Union jurisdiction over the State. Insum, there was hope that J&K would one day integrate like other States of the Union (hence the use of theterm temporary provisions in the title of the Article), but this could happen only when there was realpeace and only when the people of the State acquiesced to such an arrangement.

Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship toManichean terms is to caricature history, and this is equally true of their attitude towards Jammu andKashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote: Like somesupremely beautiful woman, whose beauty is almost impersonal and above human desire, such wasKashmir in all its feminine beauty of river and valley... Patel had a much more earthy and pragmatic viewand as his masterly integration of princely states demonstrated little time for capricious state leadersor their separatist tendencies.

But while Ayyangar negotiated with Nehrus backing the substance and scope of Article 370 with

Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Begand Maulana Masoodi), Patel was very much in the loop. And while Patel was deeply sceptical of a state

becoming part of India and not recognising ... [Indias] fundamental rights and directive principles ofState policy, he was aware of, and a party to, the final outcome on Article 370.

Negotiations

Indeed, the synergy that Patel and Nehru brought to governing India is evident in the negotiations overArticle 370. Consider this. In October 1949, there was a tense standoff between Sheikh Abdullah andAyyangar over parts of Article 370 (or Article 306A as it was known during the drafting stage). Nehru wasin the United States, where addressing members of the U.S. Congress he said: Where freedom ismenaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral.Meanwhile, Ayyangar was struggling with the Sheikh, and later even threatened to resign from the

Constituent Assembly. You have left me even more distressed than I have been since I received your lastletter I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditjileft for America ... have been created without adequate excuse, he wrote to the Sheikh on October 15.

And who did Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other thanthe Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept changingcourse. He wrote to Ayyangar: Whenever Sheikh Sahib wishes to back out, he always confronts us withhis duty to the people. But it was Patel finally who managed the crisis and navigated most of theamendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensurethat Article 370 became part of the Indian Constitution.

Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that theautonomy as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded

Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined thescope and substance of the relationship between the Centre and the State with the support of the Sheikh,


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the subsequent series of Presidential Orders have made most Union laws applicable to the State. In facttoday the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institutionof the Republic of India that does not include J&K within its scope and jurisdiction. The only substantialdifferences from many other States relate to permanent residents and their rights; the non-applicability ofEmergency provisions on the grounds of internal disturbance without the concurrence of the State; andthe name and boundaries of the State, which cannot be altered without the consent of its legislature.Remember J&K is not unique; there are special provisions for several States which are listed in Article 371and Articles 371-A to 371-I.

Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, bypublic notification, declare that this Article shall cease to be operative but only on the recommendation of

the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a newConstituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Ofcourse, Parliament has the power to amend the Constitution to change this provision. But this could besubject to a judicial review which may find that this clause is a basic feature of the relationship betweenthe State and the Centre and cannot, therefore, be amended.

Gender bias?Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property rights?

Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution based on the notifications issued in April 1927 and June 1932 during the Maharajahs rule was thoughtto be discriminatory. The 1927 notification included an explanatory note which said: The wife or a widowof the State Subject shall acquire the status of her husband as State Subject of the sam e Class as herHusband, so long as she resides in the State and does not leave the State for permanent residence outsidethe State. This was widely interpreted as suggesting also that a woman from the State who marries

outside the State would lose her status as a State subject. However, in a landmark judgement, in October2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanentresident of the State will not lose her permanent resident status on marrying a person who is not apermanent resident, and will enjoy all rights, including property rights.

Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providingspace, in matters of governance, to the people of a State who felt deeply vulnerable about their identityand insecure about the future. It was about empowering people, making people feel that they belong, andabout increasing the accountability of public institutions and services. Article 370 is synonymous withdecentralisation and devolution of power, phrases that have been on the charter of virtually every politicalparty in India. There is no contradiction between wanting J&K to be part of the national mainstream andthe States desire for self-governance as envisioned in the Article.

Separatism grows when people feel disconnected from the structures of power and the process of policyformulation; in contrast, devolution ensures popular participation in the running of the polity. It can bereasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatisttendencies in the State. Not surprisingly, at the opposition conclave in Srinagar in 1982, leaders of

virtually all national parties, including past and present allies of the BJP, declared that the specialconstitutional status of J&K under Article 370 should be preserved and protected in letter and spirit. Areview of its policy on Article 370, through an informed debate, would align todays BJP with theconsidered and reflective approach on J&K articulated by former Prime Minister Atal Bihari Vajpayee.Only then would the slogans ofJhumuriyat,KashmiriyatandInsaniyatmake real sense.

The 1974 IndiraSheikh accord

between Kashmiri politicianSheikh Abdullahand Indian Prime MinisterIndiraGandhiallowed the former to becomeChief Minister of Jammu and Kashmiragain after11 years.

Text of the IndiraSheikh accord

1. The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation

with the Union, continue to be governed by Article 370 of the Constitution of India.

2. The residuary powers of legislation shall remain with the State; however, Parliament will continue to

have power to make laws relating to the prevention of activities directed towards disclaiming,

questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a
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part of the territory of India or secession of a part of the territory of India from the Union or causing

insult to the Indian National Flag, the Indian National Anthem and the Constitution.

3. Where any provision of the Constitution of India had been applied to the State of Jammu and Kashmir

with adaptation and modification, such adaptations and modifications can be altered or repealed by an

order of the President under Article 370, each individual proposal in this behalf being considered on its

merits ; but provisions of the Constitution of India already applied to the State of Jammu and Kashmir

without adaptation or modification are unalterable.

4. With a view to assuring freedom to the State of Jammu and Kashmir to have its own legislation onmatters like welfare measures, cultural matters, social security, personal law and procedural laws, in a

manner suited to the special conditions in the State, it is agreed that the State Government can review

the laws made by Parliament or extended to the State after 1953 on any matter relatable to the

Concurrent List and may decide which of them, in its opinion, needs amendment or repeal. Thereafter,

appropriate steps may be taken under Article 254 of the Constitution of India. The grant of Presidents

assent to such legislation would be sympathetically considered. The same approach would be adopted

in regard to laws to be made by Parliament in future under the Proviso to clause 2 of the Article. The

State Government shall be consulted regarding the application of any such law to the State and the

views of the State Government shall receive the fullest consideration.5. As an arrangement reciprocal to what has been provided under Article 368, a suitable modification of

that Article as applied to State should be made by Presidential order to the effect that no law made by

the Legislature of the State of Jammu and Kashmir, seeking to make any change in or in the effect of

any provision of Constitution of the State of Jammu and Kashmir relating to any of the under

mentioned matters, shall take effect unless the Bill, having been reserved for the consideration of the

President, receives his assent ; the matters are a) the appointment, powers, functions, duties,

privileges and immunities of the Governor, and b) the following matters relating to Elections namely,

the superintendence, direction and control of Elections by the Election Commission of India, eligibility

for inclusion in the electoral rolls without discrimination, adult suffrage and composition of the

Legislative Council, being matters specified in sections 138,139, 140 and 50 of the Constitution of the

State of Jammu and Kashmir.

6. No agreement was possible on the question of nomenclature of the Governor and the Chief Minister

and the matter is therefore remitted to the Principals.

Signatories

The accord was signed on behalf of Abdullah byMirza Mohammad Afzal Begand on behalf of the Indian

government (headed by Prime Minister Gandhi) byG. Parthasarathyon 24 February 1975 in New Delhi.[3]

Article 370of theIndian constitution is a law that grants special autonomous status toJammuand Kashmir.The article is drafted inPart XXI of the Constitution, which relates to Temporary,Transitional and Special Provisions.[1]

370. Temp orary provis io ns with respect to the State of Jamm u and Kashmir.

(1)Notwithstanding anything contained in this Constitution,(a) the provisions of article 238 shall not apply now in relation to the state of Jammu andKashmir;

(b) the power of Parliament to make laws for the said state shall be limited to
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(i) those matters in theUnion List and theConcurrent List which, in consultation withtheGovernment of the State,are declared by thePresident to correspond to matters specifiedin theInstrument of Accession governing the accession of the State to theDominion of India asthe matters with respect to which the Dominion Legislature may make laws for that State; and(ii) such other matters in the said Lists as, with the concurrence of the Government of the State,the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person forthe time being recognized by the President on the recommendation of the Legislative Assemblyof the State as theSadr-i-Riyasat (nowGovernor)of Jammu and Kashmir, acting on the adviceof the Council of Ministers of the State for the time being in office.[1][2][a]

The explanation originally read, "For the purpose of this article, the Government of the State means theperson for the time being recognised by the President as theMaharaja of Jammu and Kashmir acting onthe advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation datedthe fifth day of March, 1948;" This was changed via Ministry of Law order No. C.O. dated 15th November1952 stating, "In exercise of the powers conferred by Article 370 the President, on the recommendation ofthe Constituent Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day ofNovember, 1952, the said Article 370 shall be operative with the modification that for the Explanation inCl. (1) thereof, the following explanation is substituted namely...[Explanation follows]"

(c) the provisions of article 1 and of this article shall apply in relation to that State;(d) such of the other provisions of this Constitution shall apply in relation to that State subject to

such exceptions and modifications as the President may by order specify:Provided that no such order which relates to the matters specified in the Instrument of

Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except inconsultation with the Government of the State:Provided further that no such order which relates to matters other than those referred to in thelast preceding proviso shall be issued except with the concurrence of that Government.

(2)If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause(b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before theConstituent Assembly for the purpose of framing the Constitution of the State is convened, itshall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by

public notification, declare that this article shall cease to be operative or shall be operative onlywith such exceptions and modifications and from such date as he may specify:Provided that the recommendation of the Constituent Assembly of the State referred to in clause(2) shall be necessary before the President issues such a notification.[3]

Implications.This article specifies that except for Defence, Foreign Affairs, Communications and ancillarymatters (matters specified in the instrument of accession) theIndian Parliament needs the StateGovernment's concurrence for applying all other laws. Thus the state's residents lived under aseparate set of laws, including those related to citizenship, ownership of property, andfundamental rights, as compared to other Indians. [citation needed]

Similar protections for unique status exist in tribal areas of India including those in HimachalPradesh,Arunachal Pradesh,Andaman & Nicobar Islands andNagaland.However, it is only forthe state of Jammu and Kashmir that the accession of the state to India is still a matter ofdispute between India and Pakistan still on the agenda of the UN Security Council and wherethe Government of India vide1974 Indira-Sheikh accord committed itself to keeping therelationship between the Union and Jammu and Kashmir State within the ambit of this article.[citation needed]

The 1974 Indira-Sheikh accord between Kashmiri politicianSheikh Abdullah and then PrimeMinisterIndira Gandhi stated, "The State of Jammu and Kashmir which is a constituent unit ofthe Union of India, shall, in its relation with the Union, continue to be governed by Article 370 ofthe Constitution of India".
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In notifications issued as far back as 1927 and 1932, the state created various categories ofresidentswith some being called permanent residents (PRs) with special rights. Though thelaw did not discriminate between female and male PRs, an administrative rule made it clear thatwomen could remain PRs only till marriage. After that they had to seek a fresh right to remainPRs. And if a woman married someone who wasnt a Kashmiri PR, she automa tically lost herown PR status. In 2004, the state high court, in the case of State of J&K vs Sheela Sawhney,declared that there was no provision in the existing law dealing with the status of a female PRwho married a non-resident. The provision of women losing their PR status after marryingoutside the state, therefore, did not have any legal basis. This decision was historic because itcorrected an administrative anomaly and brought relief to women who married outside the state.

A People's Democratic Party government, led by Mehbooba Mufti, passed a law to overturn thecourt judgment by introducing a Bill styled Permanent Residents (Disqualification) Bill, 2004.This was not Muftis solo effort. Omar Abdullahs party, the National Conference, backed th is Billand got it passed in the assembly. But it did not ultimately see the light of day for variousreasons.[4]

Sheikh Mohammad Abdullah, the state's 'Prime Minister' and leader of the Muslims in theValley, found the inclusion of Article 370 in the 'Temporary and Transitional Provisions' of theConstitution's Part XXI unsettling. He wanted 'iron clad guarantees of autonomy'. Suspectingthat the state's special status might be lost, Abdullah advocated independence from India,causing New Delhi to dismiss his government in 1953, and place him under preventivedetention.[5]

Some argue that the President may, by public notification under article 370(3), declare thatArticle 370 shall cease to be operative and no recommendation of the Constituent Assembly isneeded as it does not exist any longer. Others say it can be amended by an amendment Actunder Article 368 of the Constitution and the amendment extended under Article 370(1). Art.147 of the Constitution of Jammu and Kashmir states no Bill or amendment seeking to makeany change in the provisions of the constitution of India as applicable in relation to the State;shall be introduced or moved in either house of the Legislature. As per Art. 5 of the Constitutionof Jammu and Kashmir the executive and legislative power of the State extends to all mattersexcept those with respect to which Parliament has power to make laws for the State under theprovisions of the Constitution of India as applicable in relation to this state. [citation needed]

In 1949, then Prime Minister Jawaharlal Nehru directed Sheikh Abdullah to consult then LawMinisterB. R. Ambedkar to prepare the draft of a suitable article to be included in the

Constitution.[1]Ambedkar was against Article 370 and it was included against his wishes.BalrajMadhok reportedly said, Dr. Ambedkar had clearly told Sheikh Abdullah, "You wish India shouldprotect your borders, she should build roads in your area, she should supply you food grains,and Kashmir should get equal status as India. But Government of India should have only limitedpowers and Indian people should have no rights in Kashmir. To give consent to this proposal,would be a treacherous thing against the interests of India and I, as the Law Minister of India,will never do it." Then Abdullah went to Nehru, who directed him toN. Gopalaswami Ayyangar,who approached Sardar Patel asking him to do something as it was a matter of prestige forNehru, who had promised Abdullah accordingly. Patel got it passed when Nehru was on aforeign tour. On the day this article came up for discussion, Dr. Ambedkar did not reply toquestions on it though he did participate on other articles. All arguments were done byGopalaswami Ayyangar.[6][7][8]Ambedkar, the principal drafter of the Constitution, refused to draft

Article 370, and this was eventually done by Ayyangar.[1]

Constitution of Jammu And Kashmir.Article 1 of theConstitution of Jammu and Kashmir states that the State of Jammu and Kashmiris and shall be an integral part of the Union of India. Article 5 states that the executive andlegislative power of the State does not extend to matters except those with respect to whichParliament has power to make laws for the State under the provisions of the Constitution ofIndia. These provisions cannot be amended. The constitution was adopted and enacted on 17November 1956.
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Applicability of the Constitution of India to J&K.In exercise of the powers conferred by clause (1) of article 370 of the Constitution, thePresident, with the concurrence of the Government of the State of Jammu and Kashmir madeThe Constitution (Application to Jammu and Kashmir) Order, 1950 which came into force on 26Jan 1950 and was later superseded by the Constitution (Application to Jammu and Kashmir)Order, 1954 which came into force on 14 May 1954.

Demands for abrogation

There has been demand by BJP and RSS for abrogation of Article 370. Congress leaderKaranSingh, son of MaharajaHari Singh, has also opined that an integral review of Article 370 isoverdue.

The Inst rum ent of Acc ession of Jammu & Kashm ir

The Instrument of Accessionis a legal document executed byMaharajahHari Singh, ruler of

theprincely stateofJammu and Kashmir,on 26 October 1947.[1][2]

By executing this document under the

provisions of theIndian Independence Act 1947,Maharajah Hari Singh agreed to accede to the Dominion

of India .[3][4]

In a letter sent to Maharajah Hari Singh on 27 October 1947, the thenGovernor-General of India,Lord

Mountbattenaccepted the accession with a remark, it is my Government's wish that as soon as law and

order have been restored in Jammu and Kashmir and her soil cleared of the invader the question of the

State's accession should be settled by a reference to the people.[5]

Lord Mountbattens remark and the

offer made by the Government of India to conduct a plebiscite or referendum to determine the future

status of Kashmir led to a dispute between India and Pakistan regarding the legality of the accession of

Jammu and Kashmir to India.[6][7]

India claims that the accession is unconditional and final while Pakistan

maintains that the accession is fraudulent. The accession to India is celebrated on Accession Day,which

is held annually on October 26.

The preamble states:

Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August, 1947,

there shall be set up anIndependentDominion known as India, and that theGovernment of India Act

1935shall, with such omission, additions, adaptations and modifications as the governor-general may by

order specify, be applicable to the Dominion of India.

And whereas the Government of India Act 1935, as so adapted by the governor-general, provides that

anIndian Statemay accede to the Dominion of India by anInstrument of Accessionexecuted by

theRulerthereof.

Now, therefore, I Shriman Inder Mahander Rajrajeswar Maharajadhiraj Shri Hari Singhji, Jammu andKashmir Naresh Tatha Tibbetadi Deshadhipathi, Ruler of Jammu and Kashmir, in the exercise of my

sovereignty in and over my said State do hereby execute this my Instrument of Accessionand

1. I hereby declare that I accede to the Dominion of India with the intent that thegovernor-general of

India, theDominion Legislature, theFederal Courtand any other Dominion authority established for the

purposes of the Dominion shall, by virtue of this my Instrument of Accession but subject always to the

terms thereof, and for the purposes only of the Dominion, exercise in relation to the State ofJammu and

Kashmir(hereinafter referred to as "this State") such functions as may be vested in them by or under
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theGovernment of India Act, 1935,as in force in the Dominion of India, on the 15th day of August, 1947,

(which Act as so in force is hereafter referred to as "the Act").

It is further specified that:

3. I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion

Legislature may make law for this State.

Thus the power of the Dominion to make laws was restricted to the matters mentioned in the Schedule

namely Defence, Foreign Affairs and Communications and a few ancillary subjects specified in the

schedule. For all other matters concurrence of the State Government was essential.[10]

It is generally accepted by scholars that the official Indian account of the signing of the accession

document by Kashmir's maharaja - that it was signed in Jammu on 26 October 1947 - is inaccurate. An

Indian historian and commentator, Prem Shankar Jha, has argued that the document was signed by the

maharaja on 25 October 1947, just before he left Srinagar for Jammu.[11]

A British researcher, Andrew

Whitehead, argues that the document was signed in Jammu on 27 October 1947 - a few hours after the

beginning of an Indian military airlift to Srinagar to repulse an invading force of Pakistani tribesmen.[12]

President's rule

President's rule refers to Article 356 of theConstitution of Indiadeals with the failure of theconstitutional machinery of anIndian state.In the event that government in a state is not able tofunction as per the Constitution, the state comes under the direct control of the centralgovernment, with executive authority exercised through theGovernorinstead of a Council ofMinisters headed by an elected Chief Minister accountable to the state legislature. Article 356 isinvoked if there has been failure of the constitutional machinery in any state of India. DuringPresident's rule, the Governor has the authority to appoint retired civil servants or otheradministrators, to assist him.

Following its landmark judgement in the 1994Bommaicase, theSupreme Court of Indiahasclamped down on arbitrary impositions of President's rule by central governments. Currently,two states are under President's ruleDelhi and Andhra Pradeshsince FebruaryMarch2014.

Imposition of President's ruleIn practice president's rule has been imposed under different circumstances such as these:

State Legislature is unable to elect a leader as Chief Minister Breakdown of a coalition Elections postponed for unavoidable reasons Most often, until the mid-1990s, it was imposed in states through abuse of the authority of

Governors in collusion with the federal government. However, following a landmarkjudgment by the Supreme Court of India in March 1994, such abuse has been reduceddrastically.

Criticism:Article 356 gave wide powers to the central government to assert its authority over a state if civilunrest occurred and the state government did not have the means to end the unrest. This is oneof the articles that gave the Indian constitution some amount of unitary character. Though thepurpose of this article is to give more powers to central government to preserve the unity and
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integrity of the nation, it has often been misused [citation needed][1]by the ruling parties at the center.It has been used as a pretext to dissolve state governments ruled by political opponents. [citationneeded][2]Thus, it is seen by many as a threat to thefederalstate system. Since the adoption ofIndian constitution in 1950, the central government has used this article several times[3]todissolve elected state governments and impose President's rule.

The article was used for the first time in up 1957. It has also been used in the state of Patialaand East Punjab States union (PEPSU) and then duringVimochana samaramto dismiss thedemocratically electedCommuniststate government ofKeralaon 31 July 1959. In the 1970sand 1980s it almost became common practice for the central government to dismiss stategovernments led by opposition parties.[citation needed]TheIndira Gandhiregime and post-emergencyJanata Partywere noted for this practice. Indira Gandhi's government between 1966and 1977 is known to have imposed President' rule in 39 times in different states. SimilarlyJanta Party which came to power after the emergency had issued President's rule in 9 stateswhich were ruled by Congress.

It is only after the landmark judgement in 1994 in theS. R. Bommai v. Union of Indiacase thatthe misuse of Article 356 was curtailed. In this case, theSupreme Courtestablished strictguidelines for imposing President's rule. Subsequent pronouncements by the Supreme Court inJharkand and other states have further whetted down the scope for misuse of Article 356.Hence since the early 2000, the number of cases of imposition of President's rule has comedown drastically.

Article 356 has always been the focal point of a wider debate of the federal structure of

government in Indian polity. The Sarkaria Commissionon central-state relations hasrecommended that Article 356 must be used "very sparingly, in extreme cases, as a measure oflast resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutionalmachinery in the state"
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SchedulesSchedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government.

First Schedule(Articles 1 and 4) - This lists the states and territories of India, lists any changes to their borders and the lawsused to make that change.

Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221)- This lists the salaries ofofficials holding public office, judges, andComptroller and Auditor General of India.

Third Schedule(Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219)Forms of OathsThis lists the oaths of offices forelected officials and judges.

Fourth Schedule (Articles 4(1) and 80(2)) This details the allocation of seats in theRajya Sabha(the upper house ofParliament) per State or Union Territory.

Fifth Schedule(Article 244(1)) This provides for the administration and control of Scheduled Areas andScheduled

Tribes(areas and tribes needing special protection due to disadvantageous conditions). Sixth Schedule(Articles 244(2) and 275(1))Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura,

and Mizoram.

Seventh Schedule(Article 246) The union (central government), state, and concurrent lists of responsibilities.

Eighth Schedule(Articles 344(1) and 351)The official languages.

Ninth Schedule(Article 31-B)Validation of certain Acts and Regulations.

Tenth Schedule (Articles 102(2) and 191(2))"Anti-defection" provisions for Members of Parliament and Members of theState Legislatures.

Eleventh Schedule(Article 243-D) Panchayat Raj(rural local government).

Twelfth Schedule(Article 243-W) Municipalities (urban local government).

Appendices

Appendix IThe Constitution (Application to Jammu and Kashmir) Order, 1954.

Appendix IIRe-statement, with reference to the present text of the Constitution, of the exceptions and modifications subject

to which the Constitution applies to the State of Jammu and Kashmir.

Appendix IIIExtracts from the Constitution (Forty-fourth Amendment) Act, 1978.

Appendix IVThe Constitution (Eighty-sixth Amendment) Act, 2002.

Appendix VThe Constitution (Eighty-eighth Amendment) Act, 2003.

AmendmentThe process of rewriting any part of the constitution is called amendment. Amendments to the Constitution are made by theParliament, the procedure for which is laid out in Article 368. An amendment bill must be passed by both the Houses of theParliament by a two-thirds majority and voting. In addition to this, certain amendments which pertain to the federal nature of theConstitution must be ratified by a majority of state legislatures.

As of September 2013 there have been 120 amendment bills presented in the Parliament, out of which 98 have been passed tobecome Amendment Acts. Most of these amendments address issues dealt with by statute in other democracies. However, theConstitution is so specific in spelling out government powers that many of these issues must be addressed by constitutionalamendment. As a result, the document is amended roughly twice a year.

In 2000 the National Commission to Review the Working of the Constitution (NCRWC) was set up to look into updating theconstitution.

Limitations

The Supreme Court has ruled inKesavananda Bharati v. State of Keralacase that not every constitutional amendment ispermissible, the amendment must respect the "basic structure"of the constitution, which is immutable.

Adoptions from other constitutions[edit]The architects of Indian constitution were most heavily influenced by the British model ofparliamentary democracy.In addition, anumber of principles were adopted from theConstitution of the United States of America,including theseparation of powersamongthe major branches of government and the establishment of a supreme court.The principles adopted fromCanadawere federalgovernment with strong centre and also distribution of powers between central government and state governments along withplacing residuary powers with central government. FromIreland,directive principle of state policywas adopted. FromGermany,theprinciple of suspension offundamental rightsduringemergencywas adopted. FromAustralia,the idea of having a Concurrent list ofshared powers was used as well and some of the terminology was utilized for the preamble.

Judicial reviewJudicial reviewis adopted in the Constitution of India fromjudicial review in the United States.In the Indian constitution, Judicialreview is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws areunder its supremacy. Article 13 states that:

1. All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have all conflicting provisionsdeemed ineffective until an amendment to the Constitution ends the conflict. In such situation the provision of that law willagain come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.

[41]

2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible withthe constitution, otherwise the laws and amendments will be deemed to be void ab initio.

3. In such situations, the Supreme Court or High Court interprets the laws to decide if they are in conformity with theConstitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, theprovision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 226 and 227provide a constitutional basis to judicial review in India
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Article 370, 356 n Kashmir Issue

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Transcript of Article 370, 356 n Kashmir Issue