Understanding Articles 370, 35A in context of recent Ordinance on reservation
Subject: Indian Polity
Sub-topic: Provisions related to J&K
A recent central ordinance, which extends reservation to SCs and STs in J&K, throws the spotlight on Article 35A, as well as Article 370 from which it derives.
What is Article 370?
Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. It restricts Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to other matters, “concurrence” of the state government is mandatory. The IoA came into play when the Indian Independence Act, 1947 divided British India into India and Pakistan. For some 600 princely states whose sovereignty was restored on Independence, the Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan — and this joining with either of the two countries was to be through an IoA. Though no prescribed form was provided, a state so joining could specify the terms on which it agreed to join. The maxim for contracts between states is pacta sunt servanda, i.e. promises between states must be honoured; if there is a breach of contract, the general rule is that parties are to be restored to the original position.
A number of other states enjoy special status under Article 371, from 371A to 371I.
What were the terms included in the IoA for Kashmir?
The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”.
How did the accession come about?
Raja Hari Singh had initially decided to remain independent and sign standstill agreements with India and Pakistan, and Pakistan in fact signed it. But following an invasion from tribesmen and Army men in plainclothes from Pakistan, he sought the help of India, which in turn sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26, 1947 and Governor General Lord Mountbatten accepted it on October 27, 1947.
It was India’s stated policy that wherever there was a dispute on accession, it should be settled in accordance with the wishes of people rather than a unilateral decision of the ruler of the princely state. In India’s acceptance of the IoA, Lord Mountbatten stated that “it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people”. India regarded accession as purely temporary and provisional, as stated in the Government of India’s White Paper on J&K in 1948. In a letter to J&K Prime Minister Sheikh Abdullah dated May 17, 1949, Prime Minister Jawaharlal Nehru with the concurrence of Vallabhbhai Patel and N Gopalaswami Ayyangar wrote: “It has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly convened for the purpose.”
How was Article 370 enacted?
The original draft was given by the Government of J&K. Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. Moving the motion, Ayyangar said that though accession was complete, India had offered to have a plebiscite taken when the conditions were created, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”. On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly.
Was Article 370 a temporary provision?
It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’. Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. Another interpretation was that accession was temporary until a plebiscite. The Union government, in a written reply in Parliament last year, said there is no proposal to remove Article 370. Delhi High Court in Kumari Vijayalaksmi (2017) too rejected a petition that said Article 370 is temporary and its continuation is a fraud on the Constitution. The Supreme Court in April 2018 said that despite the headnote using the word “temporary’, Article 370 is not temporary. In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision.
Can Article 370 be deleted?
Yes, Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly. Since such an Assembly was dissolved on January 26, 1957, one view is it cannot be deleted anymore. But the other view is that it can be done, but only with the concurrence of the State Assembly.
What is Article 370’s significance for the Indian Union?
Article 370 itself mentions Article 1, which includes J&K in the list of states. Article 370 has been described as a tunnel through which the Constitution is applied to J&K. Nehru, however, said in Lok Sabha on November 27, 1963 that “Article 370 has eroded”. India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status. By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments. Ninety-four of 97 entries in the Union List are applicable to J&K; 26 out of 47 items of the Concurrent List have been extended.; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules.
The Centre has used Article 370 even to amend a number of provisions of J&K’s Constitution, though that power was not given to the President under Article 370. Article 356 was extended though a similar provision that was already in Article 92 of the J&K Constitution, which required that President’s Rule could be ordered only with the concurrence of the President. To change provisions for the Governor being elected by the Assembly, Article 370 was used to convert it into a nominee of the President. To extend President’s rule beyond one year in Punjab, the government needed the 59th, 64th, 67th and 68th Constitutional Amendments, but achieved the same result in J&K just by invoking Article 370. Again, Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without a resolution by the Assembly and just by a recommendation of the Governor. In certain ways, Article 370 reduces J&K’s powers in comparison to other states. It is more useful for India today than J&K.
Is there any ground in the view that Article 370 is essential for J&K being a part of India?
Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is categorical acknowledgement about the object of the J&K Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof. Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.” Article 370 is not an issue of integration but of autonomy. Those who advocate its deletion are more concerned with uniformity rather than integration.
What is Article 35A?
Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954. Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I. Article 35A empowers the J&K legislature to define the state’s permanent residents and their special rights and privileges.
Why is it being challenged?
The Supreme Court will examine whether it is unconstitutional or violates the basic structure of the Constitution. But unless it is upheld, many Presidential Orders may become questionable. Article 35A was not passed as per the amending process given in Article 368, but was inserted on the recommendation of J&K’s Constituent Assembly through a Presidential Order.
Article 370 is not only part of the Constitution but also part of federalism, which is basic structure. Accordingly, the court has upheld successive Presidential Orders under Article 370.
Since Article 35A predates basic structure theory of 1973, as per Waman Rao (1981), it cannot be tested on the touchstone of basic structure. Certain types of restrictions on purchase of land are also in place in several other states, including some in the Northeast and Himachal Pradesh. Domicile-based reservation in admissions and even jobs is followed in a number of states, including under Article 371D for undivided Andhra Pradesh. The Centre’s recent decision extending to J&K reservation benefits for SCs, STs, OBCs and those living along international borders, announced last week. throws the spotlight back on Article 35A.
Parent provision and its offshoot
- Article 370
Part of the Constitution ever since it came into effect, it lays down that only two Articles would apply to J&K: Article 1, which defines India, and Article 370 itself. Article 370 says other provisions of the Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly.
- Article 35A
Introduced by a Presidential Order of 1954, it empowers the J&K legislature to define a “permanent resident” of the state, and to provide special rights and privileges to those permanent residents.
Toilet to Tap project
Subject: Ecology and Environment
Sub-topic: Waste management
There are over 750 million people in the world living without access to clean water. Because of this, many people are prone to fecal and bacterial-related diseases. While much of the world has limited access to clean, drinkable water, many countries have implemented a way to recycle and reuse wastewater into safe drinking water. The method is called the “Toilet to Tap” concept.
Sewage treatment plant processes fall into two basic types:
· Anaerobic Sewage Treatment
Sewage is partly decomposed by anerobic bacteria in a tank without the introduction of air, containing oxygen. This leads to a reduction of Organic Matter into Methane, Hydrogen Sulphide, Carbon Dioxide etc. It is widely used to treat wastewater sludge and organic waste because it provides volume and mass reduction of the input material to a large extent.. The methane produced by large-scale municipal anerobic sludge treatment is currently being examined for use in homes and industry, for heating purposes.
Septic tanks are an example of an anerobic process, but the amount of methane produced by a septic tank (it is only the SLUDGE at the bottom that produces methane) serving less than 100 people is miniscule. In addition to this, septic tank effluent still contains about 70% of the original pollutants and the process smells very badly, due to the Hydrogen Sulphide, if not vented correctly. The effluent produced by this process is highly polluting and cannot be discharged to any watercourse. It must be discharged into the Aerobic layer of the soil (within the top metre of the ground) for the aerobic soil bacteria to continue the sewage treatment via the aerobic process below.
· Aerobic Sewage Treatment
In this process, aerobic bacteria digest the pollutants. To establish an aerobic bacterial colony you must provide air for the bacteria to breathe. In a sewage treatment plant, air is continuously supplied to the Biozone either by direct Surface Aeration using Impellers propelled by pumps which whisk the surface of the liquid with air, or by Submerged Diffused Aeration using blowers for air supply through bubble diffusers at the bottom of the tank. (The most modern aerobic sewage systems use natural air currents and do not require electricity, though these are only used for small scale sewage systems at the moment.
Once again, the general public leads the way!) Aerobic conditions lead to an aerobic bacterial colony being established. These achieve almost complete oxidation and digestion of organic matter and organic pollutants to Carbon Dioxide, Water and Nitrogen, thus eliminating the odour and pollution problem above. The effluent produced by this process is non-polluting and can be discharged to a watercourse.
Conventional sewage water treatment process
Conventional sewage water treatment involves either two or three stages, called primary, secondary and tertiary treatment. Before these treatments, preliminary removal of rags, cloths, sanitary items, etc. is also carried out at municipal sewage works.
· Primary Treatment
This is usually Anerobic. First, the solids are separated from the sewage. They settle out at the base of a primary settlement tank. The sludge is continuously being reduced in volume by the anerobic process, resulting in a vastly reduced total mass when compared to the original volume entering the system.
The primary settlement tank has the sludge removed when it is about 30% of the tank volume.
· Secondary Treatment
This is Aerobic. The liquid from the Primary treatment contains dissolved and particulate biological matter. This is progressively converted into clean water by using indigenous, water-borne aerobic micro-organisms and bacteria which digest the pollutants. In most cases, this effluent is clean enough for discharge directly to rivers.
· Tertiary Treatment
In some cases, the effluent resulting from secondary treatment is not clean enough for discharge. This may be because the stream it is being discharged into is very sensitive, has rare plants and animals or is already polluted by someone’s septic tank. The Environment Agency may then require a very high standard of treatment with a view to the new discharge being CLEANER than the water in the stream and to, in effect, ‘Clean it up a bit’. It is usually either Phosphorous or Ammoniacal Nitrogen or both that the E.A. want reduced. Tertiary treatment involves this process. If Phosphorous is the culprit, then a continuous dosing system to remove it is the tertiary treatment. If Ammoniacal Nitrogen is the problem, then the sewage treatment plant process must involve a nitrifying and then de-nitrification stage to convert the ammoniacal
Finally, the Sludge is periodically removed by tanker and taken for further processing via aerobic/anerobic processes and then disposed of or re-used, and the treated water may be discharged into a stream, river, bay, lagoon or wetland, or it can be used for the irrigation of a golf course, green way or park. If it is sufficiently clean, it can also be used for groundwater recharge or agricultural purposes.
Countries like Singapore, Namibia, India, Mexico, Europe and the United States have implemented Indirect Potable Reuse and Direct Potable Reuse methods, both of which are used to effectively purify water via the process of reverse osmosis.
Reverse osmosis is a common water purification process. First, the water filters through a dual membrane at least three times. After this, the water goes through a UV light as well as a sub-micron filter to clean out any remaining unwanted particles.
Singapore began the initiative in 1998, known as the NEWater Study, in order to determine how safe recycled wastewater is to drink. According to the Public Utilities Board (PUB), Singapore specifically uses “secondary sewage water that has undergone stringent purification and treatment processes using advanced dual-membrane and ultra-violet technologies.” Through this process, Singapore supplies at least 80 million liters of clean water per day from each of its three facilities.
Introduction of Form 26 in Elections
Subject: Indian Polity
Why in news?
The Law Ministry made it mandatory for election candidates to reveal their income-tax returns of the last five years, as well as the details of their offshore assets.
This was done by amending Form 26, after the Election Commission of India wrote to the Ministry on February 13.
A candidate in an election is required to file an affidavit called Form 26 that furnishes information on her assets, liabilities, educational qualifications, criminal antecedents (convictions and all pending cases) and public dues, if any. The affidavit has to be filed along with the nomination papers and should be sworn before an Oath Commissioner or Magistrate of the First Class or before a Notary Public.
Earlier, a candidate had to only declare the last I-T return (for self, spouse and dependents). Details of foreign assets were not sought. Offshore assets, as per the February 26 notification, means “details of all deposits or investments in foreign banks and any other body or institution abroad and details of all assets and liabilities in foreign countries”.
It is now mandatory for candidates to reveal their own income-tax returns of the last five years rather than only one, and the details of offshore assets, as well as the same details for their spouse, members of the Hindu Undivided Family (if the candidate is a karta or coparcener), and dependents.
Why must candidates file these details?
The objective behind introducing Form 26 was that it would help voters make an informed decision. The affidavit would make them aware of the criminal activities of a candidate, which could help prevent people with questionable backgrounds from being elected to an Assembly or Parliament. With the recent amendment, voters will know the extent to which a serving MP’s income grew during his five years in power.
What happens if a candidate lies in an affidavit?
A candidate is expected to file a complete affidavit. Leaving a few columns blank can render the affidavit “nugatory”. It is the responsibility of the Returning Officer (RO) to check whether Form 26 has been completed; the nomination paper can be rejected if the candidate fails to fill it in full.
If it is alleged that a candidate has suppressed information or lied in her affidavit, the complainant can seek an inquiry through an election petition. If the court finds the affidavit false, the candidate’s election can be declared void.
The current penalty for lying in an affidavit is imprisonment up to six months, or fine, or both. In May 2018, the EC had asked the government to make the filing of a false affidavit a “corrupt practice” under the election law, which would make the candidate liable for disqualification for up to six years. But nothing has been done by the government on this front.
Fine for Non-implementation of SWIFT in banks
Subject: Indian Economy
Reserve Bank of India (RBI) have imposed a monetary fine on 7 Banks for non-compliance with the directions on Implementing the SWIFT software.
What is SWIFT?
SWIFT (Society for Worldwide Interbank Financial Telecommunications) is the messaging network used by banks to transmit instructions, or information, on financial transactions. An alleged Rs 14,000-crore fraud at Punjab National Bank, detected last year, involved the misuse of this software.
What is the SWIFT network?
Banks around the world needed a consistent, universal way to get money from one country to another. The SWIFT network became that answer.
SWIFT provides a secure network that allows more than 10,000 financial institutions in 212 different countries to send and receive information about financial transactions to each other.
Prior to SWIFT, Telex was the only available means of message confirmation for international funds transfer. Telex was hampered by low speed, security concerns, and a free message format–in other words, Telex did not have a unified system of codes like SWIFT to name banks and describe transactions. Telex senders had to describe every transaction in sentences which were then interpreted and executed by the receiver. This led to many human errors.
To circumvent these problems, the SWIFT system was formed in 1974. Seven major international banks formed a cooperative society to operate a global network that would transfer financial messages in a secure and timely manner.
Services Offered by SWIFT
- Applications – SWIFT connections enable access to a variety of applications, which include real-time instruction matching for treasury and forextransactions, banking market infrastructure for processing payment instructions between banks, and securities market infrastructure for processing clearing and settlement instructions for payments, securities, forex, and derivatives transactions.
- Business Intelligence – SWIFT has recently introduced dashboards and reporting utilities which enable the clients to get a dynamic, real-time view of monitoring the messages, activity, trade flow, and reporting. The reports enable filtering based on region, country, message types, and related parameters.
- Compliance Services – Aimed at services around financial crime compliance, SWIFT offers reporting and utilities like Know Your Customer (KYC), Sanctions, and Anti-Money Laundering (AML).
- Messaging, Connectivity, and Software Solutions – The core of SWIFT business resides in providing a secure, reliable, and scalable network for the smooth movement of messages. Through its various messaging hubs, software, and network connections, SWIFT offers multiple products and services which enable its end clients to send and receive transactional messages.
SWIFT uses a system of codes to detail where a transfer is coming from, where it’s going, and how it’ll to get there. These strings of alphanumeric identifiers comprise an institution code, a country code, a location code, and a branch code.
Without SWIFT, global trade and investment would be slower, costlier and less reliable.
Threat to Olive Ridley Sea Turtle
Subject: Ecology and Environment
The olive ridley turtle is named for the generally greenish color of its skin and shell, or carapace. It is closely related to the Kemp’s ridley, with the primary distinction being that olive ridleys are found only in warmer waters, including the southern Atlantic, Pacific and Indian Oceans
Size and Weight
Olive and Kemp’s ridleys are the smallest of the sea turtles, weighing up to 100 pounds and reaching only about 2 feet in shell length. The olive ridley has a slightly smaller head and smaller shell than the Kemp’s.
These turtles are solitary, preferring the open ocean. They migrate hundreds or even thousands of miles every year, and come together as a group only once a year for the arribada, when females return to the beaches where they hatched and lumber onshore, sometimes in the thousands, to nest
Olive ridleys have nesting sites all over the world, on tropical and subtropical beaches. During nesting, they use the wind and the tide to help them reach the beach. Females lay about a hundred eggs, but may nest up to three times a year. The nesting season is from June to December.
Predators and Prey
The olive ridley is mostly carnivorous, feeding on such creatures as jellyfish, snails, crabs, and shrimp. They will occasionally eat algae and seaweed as well. Hatchlings, most of which perish before reaching the ocean, are preyed on by crabs, raccoons, pigs, snakes, and birds, among others. Adults are often taken by sharks.
Threats to Survival
Though the olive ridley is widely considered the most abundant of the marine turtles, by all estimates, it is in trouble. Its numbers, particularly in the western Atlantic, have declined precipitously.
Many governments have protections for olive ridleys, but still, eggs are taken and nesting females are slaughtered for their meat and skin. Fishing nets also take a large toll, frequently snagging and drowning these turtles.
The olive ridley sea turtle nests at several sites in the western Indian Ocean, Indian subcontinent and Southeast Asia. The single most important breeding area for olive ridleys in the Indian Ocean along the Bay of Bengal is Orissa.
Gahirmatha beach off Bay of Bengal in Odisha coast is world’s largest-known nesting ground of these animals. Apart from Gahirmatha, these threatened aquatic animals turn up at Rushikulya river mouth and Devi river mouth in the state for mass nesting.
All the five species of sea turtles occurring in India, including the Olive Ridley turtles, are legally protected under Schedule I of the Wildlife Protection Act, 1972 and Appendix I of the CITES Convention which prohibits trade in turtle products.