Background and Implications of Article 370
Article 370 has been arguably one of the most controversial provision of the Constitution of India. The article deals with the special status to the state of Jammu and Kashmir. Article 370 has made the headlines a couple of times since the Indian Government has decided to scrape it off. There have been strong responses for both for and against the scraping off of Article 370. Some people believe that Article 370 acts as a constitutional connection between the state of Jammu and Kashmir and the rest of India while others are of the view that Article 370 acts as a major block which prevents Jammu and Kashmir from being an integral part of India. Even during its implementation, there have been two views regarding it. It was opposed by some of India’s founding fathers like Sardar Vallabhbhai Patel and Babasaheb Ambedkar while it was supported by leaders like Jawaharlal Nehru. After so many years of its implementation, the legal and constitutional factors are still burning and the real sufferer of all these are the people of Jammu and Kashmir.
Since Independence, Kashmir has witnessed many bloody wars and rebellions, all of which has taken a toll in the lives of the people of Kashmir. Kashmir is still battling problems like unemployment, illiteracy and terrorism. At this point, we can just hope that whatever decision the Government has taken regarding the Article 370 issue comes as a boon for the people of the state and helps to eliminate Kashmir’s problems so that Kashmir lives up to its title ‘Paradise on Earth’.
WHAT IS ARTICLE 370?
The Article 370 of Indian Constitution is a ‘temporary provision’ which gives special autonomous status to twelve states including the state of Jammu & Kashmir. Article 370 falls under Part XXI of the Indian Constitution, which deals with ‘Temporary, Transitional and Special Provisions’. According to Article 370, the provision of only Article 1 and 370 is applicable to the state. The Constitutional provisions which the President has specified in his 1954 Order are also applied to the state. This Order can be modified from time to time. Except these, no other Constitutional Provisions are applicable to the State.
Article 370 restricts the law-making power of the government. Parliament can make laws on any matter which is mentioned in either Central and Concurrent list of any State except the twelve States mentioned in Article 370. For these twelve states, the Government can make laws only on the matters which were decided during signing the Instrument of Accession between Maharaja Hari Singh (last ruler of J & K) and Indian Government which includes Defence, Communication and External Affairs. These three areas cover total 31 matters of Central and Concurrent list. In case, the government wants to make laws on any other matter outside these three, it has to take the permission of the State Government. Generally, when the Parliament passes a law it becomes applicable in all other states but it is not so in the case of Jammu & Kashmir. For example, when a law on GST was passed it immediately became applicable on other states but in Jammu & Kashmir after a law is passed by the Parliament, it needs to be ratified by the State Assembly before it is applied on the State.
Article 370 also mentions the procedure by which it can be removed. Article 370(3) states that the Article can be abrogated if it is agreed upon by the Constituent Assembly of Jammu & Kashmir and also President through a public notification declares that Article 370 should cease to exist.
HOW ARTICLE 370 CAME INTO EFFECT?
The ruler of Kashmir did not want to join either India or Pakistan. In India, he feared democracy and in Pakistan he feared communalism. He wanted to rule Kashmir as an independent ruler. In 1947, it was decided that Kashmir was free to join either India or Pakistan and it will be decided by a plebiscite. However, Pakistan rejected the idea of a referendum. On 22nd October, 1947, the Pakistani army attacked Srinagar. Seeing no other way, Hari Singh appealed to India for military assistance. The Indian government declared that it can only send troops after the state becomes a part of India. On 26th October, 1947, the Instrument of Accession was signed between Hari Singh and the Indian government and thus, Jammu and Kashmir became an integral part of India. However, when Jawaharlal Nehru pointed out to Muhammad Ali Jinnah (the leader of Pakistan at that time) this fact, he rejected the Instrument of Accession on the ground that the ruler of Kashmir had signed it under pressure.
At this point, Nehru wanted to avoid a bloody war again and therefore, he took the matter to the Security Council of the United Nations. The Security Council, guided by Britain and United States, gave very little value to the Instrument of Accession and gave Kashmir the status of a ‘disputed area’. During this time, both India and Pakistan accepted a ceasefire. The UN declared that a referendum will be held after Pakistan withdraws its troops from Kashmir, which would decide the fate of Kashmir. However, Pakistan refused to withdraw its troops and the plebiscite never happened.
At this time, a new leader named Sheikh Abdullah emerged in Kashmir. His party was known as National Conference and he represented suppressed classes. Meanwhile, Jawaharlal Nehru thought that till a plebiscite is held, the people of Jammu and Kashmir should see India as their homeland and feel safe secured. Article 370 was the result of these thought. Due to these, a meeting was held between Sheikh Abdullah’s party and the Indian government and it came to be known as the Delhi Agreement. In this meeting, the provisions of the Instrument of Accession were discussed and to incorporate it in the Indian Constitution, Article 370 came into existence.
IMPLICATIONS OF ARTICLE 370
Article 370 mentions itself as a ‘temporary provision’ and as we have discussed earlier, the procedure for the removal of Article 370 is mentioned in the Article itself. Article 370(3) states that the Article can be abrogated if President through a public order declares that Article 370 should cease to exist. But before this, it is mandatory for the President to seek the permission of the Constituent Assembly of the state. The main problem lies here as the Constituent Assembly of Jammu and Kashmir does not exists. It was abolished on 1957. This is the deadlock which has been prevailing regarding the removal of the article. The government came with a solution to this problem. In 2019, President Ram Nath Kovind issued a Presidential Order named The Constitution (Application to J & K) Order 2019 to override the 1954 order, which was responsible for the emergence of the articles granting special status to Jammu and Kashmir.
In addition to this, in 2019 the Government came out with two resolutions. The Government declared Article 370 discriminatory so, it decided to bring some changes in the article to make it inoperative. For this purpose, Clause (4) was added in Article 367 (it is the interpretation of Article 370), which says that as the Constituent Assembly of Jammu and Kashmir no longer exists, from now on the word ‘Constituent Assembly’ in Article 370 will mean the Legislative Assembly of the State.
Author: DISHANI BAKSHI,
1st Year, MNLU, Nagpur.