Under Article 1 of the Indian Constitution, the State of Jammu and Kashmir (J&K) is a constituent state of Indian Union and its territory forms a part of the territory of India. On the other hand, Article 370 in Part XXI of the Constitution grants special status to it. Accordingly, all the provisions of the Constitution of India do not apply to it.
- November 1951 – Constitution Assembly of J&K was created
- September 1956 – Constitution of J&K adopted
- September 1956 – Constituent Assembly ended
Historical Background –
- With the end of the British paramountcy, the State of Jammu and Kashmir (J&K) became independent on 15 August 1947.
- Initially, its ruler, Maharaja Hari Singh, decided not to join India or Pakistan and thereby remain independent.
- On 20 October 1947, the Azad Kashmir Forces supported by the Pakistan army attacked the frontiers of the state. Under this unusual and extraordinary political circumstance, the ruler of the state decided to accede the state to India.
- Accordingly, the ‘Instrument of Accession of Jammu and Kashmir to India’ was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 1947.
- Under this, the state surrendered only three subjects (defence, external affairs and communications) to the Dominion of India.
- At that time, the Government of India made a commitment that ‘the people of this state, through their own Constituent Assembly, would determine the internal Constitution of this state and the nature and extent of the jurisdiction of the Union of India over the state, and until the decision of the Constituent Assembly of the State, the Constitution of India could only provide an interim arrangement regarding the state.’
- In pursuance of this commitment, Article 370 was incorporated in the Constitution of India. It clearly states that the provisions with respect to the State of J&K are only temporary and not permanent. It became operative on 17 November 1952.
How to remove Article 370?
The President can declare that Article 370 ceases to be operative or operates with exceptions and modifications. However, this can be done by the President only on the recommendation of the Constituent Assembly of the state.
How did the Government revoke Article 370?
- Article 370 – It was a temporary framework meant to decide the working relationship between Union of India and State of J&K until the Constituent Assembly of J&K until the assembly formed a new constitution for themselves.
- Hence, 370 automatically goes away with the framing of J&K Constitution.
- Today, the Constitution of J&K has been replaced with the Constitution of India.
- Article 370(3) – Dealing with the repulsion of Article 370. Today, the term ‘constituent assembly’ has been replaced with the term ‘legislative assembly’ after CA has ended.
- Apart from Article 370(2) and 370(3), the entire provisions of Article 370(1) refers to the Government of State. Since 1952, the Government of State refers to the Governor of the State. (Delhi Agreement (1952) between Nehru and Sheikh Abdullah – Replaced Sadr-e-Riyasat with the term ‘Governor’).
- Therefore, Article 370 is not abrogated, but Article 370(1) has been used to make the Constitution of Jammu and Kashmir redundant.
- Article 35-A is a conjoined twin of Presidential order of 1954. As the 1954 order is superseded with a new order today, the Article 35-A goes away with it automatically.
Why notification was enough and no need to amend the Constitution?
To understand this, you need to break Article 370 (1) into two different categories –
- Article 370(1)(a) and (b)- The power of the Parliament to make laws.
- Article 370(1)(d) – Power of the President to issue notifications.
Power of Parliament –
- ‘Instrument of accession’ is the basis and primary document that establishes the relationship between two identities (not Article 370). Article 370 only decides the degree of autonomy.
- Under Article 370(1), those issues which are identified in the instrument of accession i.e. defence, external affairs and communications which are relatable to the matters of Union List and Concurrent List, the Parliament shall have power to make laws on such subjects with the only ‘consultation’ required from the Government of State.
- For matters that fall under Union and Concurrent List, but not falling under the above mentioned three matters, the Parliament requires the ‘concurrence’ of the Government of State.
Power of President –
- Article 370(1)(d) – Power of the President to apply other provisions of the Indian Constitution except mentioned in Article 1 and Article 370 of the Constitution (as these two provisions are mentioned in Article 370(1)(c) ).
- President can invoke his powers under Article 370(1)(d) to apply such other provisions of the Constitution with or without exceptions/modifications via the use of a notification. A rule applies here saying, if the order relates to the issues under the ‘Instruments of Accession’, then you need only the consultation of the Government of the State.
- If the order relates to the issues outside the ‘Instruments of Accession’, then you need the concurrence of the Government of the State.
In May 1949, the President of Buddhist Association of Ladakh wrote a letter to PM Nehru i.e. before the accession of Kashmir to India, saying that Ladakh has always had a different identity from Kashmir and it has also been a part of Tibet at some point of time. It was annexed in 1834 even before the formation of Princely State of Jammu and Kashmir (under Treaty of Amritsar of 1846). Therefore, if Kashmir decides to stay independent or wishes to go away with Pakistan, Ladakh wants to be with India, and not with Tibet.
What is Article 370?
Key provisions of Article 370 (for Prelims) –
- Its name, area or boundary cannot be changed by the Union without the consent of its legislature.
- Part VI of the Constitution of India (dealing with state governments) is not applicable to this state. The very definition of ‘state’ under this part does not include the State of J&K.
- The power to make laws of preventive detention in the state belongs to the state legislature.
- A National Emergency declared on the ground of internal disturbance (only external aggression is applicable) will not have an effect in the state except with the concurrence of the state government.
- President’s Rule under the Indian Constitution and Governor’s Rule under the state Constitution.
- An amendment made to the Constitution of India does not apply to the state unless it is extended by presidential order.
- The High Court of J&K can issue writs only for the enforcement of the fundamental rights and not for any other purpose.
Jammu and Kashmir Constitution –
- It clarifies that the permanent residents of the state are entitled to all rights guaranteed under the Constitution of India. But, any change in the definition of ‘permanent’ can be made by the state legislature only. (Article 35-A i.e. Clause 1 of Article 370)
- No bill of a constitutional amendment can be moved in either House if it seeks to change the relationship of the state with the Union of India.
For quick reading (Article 370) –
- Incorporated in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (barring Article 1 and Article 370 itself) and allows it to draft its own Constitution.
- As per the Constitution of India, Article 370 grants special autonomy to Jammu and Kashmir and is also temporary in nature.
- The provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganised, cannot apply to the state of Jammu and Kashmir.
- Article 370 has been drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions.
- The Indian Parliament cannot increase or reduce the borders of J&K.
It must be remembered that Dr BR Ambedkar, the father of the Indian constitution, had refused to draft Article 370 after which PM Jawaharlal Nehru directed cabinet minister (without portfolio) Gopalaswami Ayyangar to draft Article 370.
What are the provisions under Article 35-A?
- As per this law, permanent residents of Jammu and Kashmir have the right to own immovable property, settle permanently, or avail state-sponsored scholarship schemes.
- It further restricts companies from hiring non-J&K residents if they want to operate in the state.
- A person who is not from J&K cannot obtain a state government job.
- Non-J&K resident cannot join any professional college run by the government of Jammu and Kashmir or get any form of government aid.
- Article 35A was incorporated into the Constitution in 1954 by the orders of the then president Rajendra Prasad on the advice of the Pandit Jawaharlal Nehru Cabinet. (Clause 1 of Article 370 of the Indian Constitution)
Way forward –
- Restore full statehood to Jammu and Kashmir to restore federal features of the Indian Constitution after normalcy returns to the region.
- Why UT? The exchange of letters between the British Crown and rulers of Princely State of J&K (Maharaja Gulab Singh and Ranbir Singh – between 1846 and early 1900s) is a fantastic read. These letters highlight that the entire region is of considerable geo-strategic importance (giving access to China, Afghanistan, Russia – at that time), hence it is imperative to keep this region under the direct control of the Union Government.
- August 13, 1948 – UN Resolution on Kashmir – Three parts are there. The Part 3 deals with Truce Agreement which says that Pakistan needs to vacate PoK (all the troops and tribesmen), subsequent to which India shall be allowed to retain its troops to ensure that status quo is maintained as existed before the invasion by Pakistan. The question of plebiscite comes later. Pakistan agreed to this contract but never acted upon it.
- When Article 1 of Constitution of J&K, accepted in 1956, the Constituent Assembly specifically said that J&K is an integral part of India, it is tantamount to a plebiscite where the voice of the people is communicated through their constitution-makers. When the CA spoke, it spoke as J&K as defined under the Treaty of Amritsar which means they have spoken on behalf of everyone including the areas occupied illegally by Pakistan.
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