This article has been written by Reet Babbar, a second year student of University of Petroleum and Energy Studies, Dehradun.

What is Article 370 all about?

Jammu and Kashmir was granted an exceptional standing under Article 370, and the circumstances that led to that status being maintained until the year 2019 has quite an extensive and complex history. When Article 370 was enacted, it functioned as a conduit for sustaining Kashmir’s connection to India. Although Jammu and Kashmir was a part of the Indian Union, its relationship with the Central Government and constitutional status were substantially different compared to those of the remaining states. The State possessed a far higher level of autonomy and prerogative compared to the other states, as well as the Center’s authority inside the State is less widespread compared to what it is regard to the remaining States. Hence it becomes crucial for us to initially learn about the background of exactly how this article originated along with what were the objectives for providing the state with this particular status.

Background

When Pakistan attacked Jammu and Kashmir in 1947, Maharaja Hari Singh requested assistance from the Indian government out of concern. Jammu & Kashmir was not a part of India at the time, the Indian Government countered, therefore, that they were in no position to render support. Owing to the prevailing circumstance, Maharaja Hari Singh and the Indian Government signed the Instrument of Accession on October 26, 1947, incorporating Jammu and Kashmir as an integral part of India. The Governor General of India approved the Jammu and Kashmir Ruler’s instrument of accession on October 27, 1947. The State solely granted the central government of India control over three primary arenas known as – external affairs, defense, and communications, under this agreement.

Jawaharlal Nehru notifies Mohd. Ali Jinnah that Jammu and Kashmir is now legally a part of India in accordance with the agreement in order to put an end to the turmoil occurring in Kashmir, while Jinnah on the other hand gave no acknowledgment to this Instrument of Accession and was opposed to it. Nehru approaches the UN to resolve these issues, but the UN gave it very little significance and labeled Kashmir as a disputed region whose disagreement could only be settled by a plebiscite. The terms set forward before the referendum were that the Indian army would be reduced in size and the Pakistani army would be evacuated from the territory it now occupies, but neither nation was willing to back down and disband its armed forces.

Sheikh Abdullah, a new leader who represented numerous political causes, rose to prominence in Jammu and Kashmir at this time. Nehru thus considered measures to ensure the state’s population was protected and safe so that even if a referendum were to be held, they would choose to remain a part of India. Article 370 was developed based on this approach. In a conference known as the Delhi Agreement, Sheikh Abdullah and the Indian government discussed the terms of the document. To include these terms into the constitution, Article 370 was adopted.

Exceptional status to Jammu and Kashmir

Part XXI of the Indian Constitution, which included Article 370, gave twelve states, including Jammu and Kashmir, temporary, transitional, and exceptional provisions. First, while discussing the legislative branch’s authority, it is important to note that, in general, the parliament has the authority to enact laws on issues covered by the Central List and Concurrent List for each state, but Article 370 said that the legislature’s authority over the State of Jammu and Kashmir was constrained and that it could only do so with regard to the Defense, Communication, and External Affairs subjects that were specified when the accession document was signed. Additionally, any legislation passed by parliament had to be ratified by the state assembly before it could be implemented in Jammu and Kashmir.

Owing to its special status, it was capable of maintaining an autonomous constitution from Indian constitutional provisions without external intervention and Jammu and Kashmir was only subject to the provisions of the Indian constitution that the president specifically mentioned in his Presidential Order of 1954; all other articles of the constitution were not applicable therein.

Article 370 in relation with Article 35A

The Constitution (Application to J&K) Order, 1954 was a presidential order that was issued by President Dr. Rajendra Prasad in 1954. From this order, both Article 35A and the Constitution of Jammu and Kashmir were constituted. Article 35 was formed to provide Jammu and Kashmir the special status referred to in Article 370. As a result, J&K’s constitutional position was separated from that of the other states, and there were also differences among the population of the territory. According to Article 35A, Jammu and Kashmir is excluded from all laws that other states in the country adopted. The president and the state parliament shall select which laws will be in effect. Additionally, this clause established who is and is not a permanent citizen of the state. People who were deemed to be permanent residents gained special rights and benefits, while those who did not fall into this classification were subject to several restrictions. Even basic rights such as Right to Vote, were not available to non-permanent residents and hence there were many discriminations.

Constitution (Application to Jammu and Kashmir) Order, 2019

On August 5, 2019, President Ram Nath Kovind exercised the authority granted to him by Article 370 (1) and issued a new presidential order, The Constitution (Application to J&K) Order, 2019. With immediate effect, this presidential order repealed or superseded the order of 1954, and as a result, Article 35A and the Jammu and Kashmir constitution ceased to exist.

Amit Shah, the home minister, put up two proposals when the presidential order for 2019 was announced. The first one was that Article 370 was causing widespread discrimination, thus it needed to be changed so that it would no longer be in effect. He also put out a bill for the reorganization of Jammu and Kashmir. He continued by saying that because of Article 370, democracy is not fully achieved in Jammu and Kashmir and that progress is being halted. 

Article 370 could not yet be repealed since, as stated above, such an action would require the permission of the constituent assembly, which at the time did not exist. But with this amendment, the impasse was lifted and a clause was introduced to Article 367 that dealt with this issue and said that the term “constituent assembly” now meant “legislative assembly,” which made the omission of Article 370, now, possible. In addition, Section 4 of the J&K Reorganization Bill stated that Jammu and Kashmir will be constituted as a separate Union Territory and will have its own legislature, while Section 3 declared Ladakh to be a separate Union Territory as well.

Conclusion

With the repeal of Article 370, substantial changes were introduced to Jammu and Kashmir’s territory. Since the State joined the Indian Union as a constituent part, its constitutional position has evolved. Now that it has progressed more towards a stronger connectedness between the state and the union, all of the Indian Constitution’s provisions are being applied to it. Additionally there is also no longer a distinct flag for the territory, only single citizenship, no special positions or privileges, even emergency provisions now apply to it, there is a reservation for minorities, inhabitants from other parts of the nation are not prohibited from living in J&K or purchasing property there, and many other modifications.

References

• Indian Constitutional Law, M.P. Jain, LexisNexis Publication.
• The Constitution (Application To Jammu And Kashmir) Order, 2019 C.O. 272
• The Jammu and Kashmir Reorganization Act, 2019
• The Constitution (Application to Jammu and Kashmir) Order, 1954 
• https://www.thehindu.com/news/national/explained-presidents-order-scraps-its-predecessor-and-amends-article-370/article61587647.ece
• https://www.bbc.com/news/world-asia-india-49234708
• https://adimagazine.com/articles/kashmir-a-historical-timeline/
• https://theprint.in/opinion/kashmir-was-never-just-a-1947-problem-it-is-a-5000-year-old-battle-of-histories/275418

Aishwarya Says:

Law students often face problems, which they cannot share with their friends and families. We have started a column on our website Student’s Corner. In this column we are talking to several law students about the challenges that they face. Students who are interested in participating in the same, can fill this Google Form.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems to aishwarya@aishwaryasandeep.com

Join our  Whatsapp Group for latest Job Opening