What is Article 370 ?

By Nishita Makkar

Introduction

India has been granted its independence after a hundred years of freedom struggle, on August 15^th, 1947 and became a republic state after the adoption of the constitution on January 26, 1950.

No matter how big the state was, the constitution was same for all the states providing unity and integrity to the “Union of India”. But it was not the true picture in case of Jammu and Kashmir.

Article 370 and Article 35A provided the State of Jammu and Kashmir a special status constitutionally and demographically. It was having its own flag, separate citizenship, limited applicability of Fundamental rights envisaged in the Indian Constitution and also a different penal code known as ‘Ranbir Penal Court’^[1].

With respect to the various challenges coming in way of administration and development of Jammu and Kashmir, the Article 370 was held ‘inoperative’ and bifurcated into two Union Territories i.e. Jammu and Kashmir and Ladakh.

This Article deals with historical background and current status of Jammu and Kashmir –the state and now the Union Territory.

What were the Circumstances leading to apply Article 370?

In the First Anglo-Sikh War 1845, Gulab Singh (grandnephew of Maharaja Ranjit singh) turned out to be a useful mediator by Sir Henry Lawrence resulted in two treaties. In this, the State of Lahore was handed over to Britishers and the hill countries between Beas and Indus was given to Gulab Singh.

After the Treaty of Amritsar, Gulab Singh was freed from the obligations towards Sikhs and made him Maharaja of Jammu and Kashmir. After Gulab Singh’s death in 1857, his son, Ranbir Singh, added the emirates of Hunza, Gilgit and Nagar to the kingdom.

Ranbir Singh’s grandson Hari Singh ascended the throne of Kashmir in 1925, was the reigning monarch in 1947 at the conclusion of British rule in 1947 at the end of British Rule. After the partition, an internal Revolt break down in the Poonch region against oppressive taxation by Maharaja and rebels declared it ‘Azad Kashmir’.

There were riots everywhere and Pakistani rebels invaded Kashmir. Then Maharaja Hari Singh came to Indian government for help, after signing Instrument of Accession^[2], Indian soldiers drove the Pakistani troops out of the Jammu and Kashmir.

The succession was ad hoc which would be ultimately decided by people of Jammu and Kashmir said by Shiek Abdulah the people of the State.

UN proposed plebiscite which never conducted leading to three wars over Kashmir between India and Pakistan in 1965, 1971 and 1999. All these circumstances led to Article 370 through a Presidential order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954- issued by the president of India under Article 370 which has lost its effect after the Jammu and Kashmir reorganization act, 2019.

Article 370- What does the Constitution say?

Part XXI of the Indian Constitution deals with ‘Temporary, Transitional and Special Provisions’, in which Article 370 explains about the temporary provisions with respect to the State of Jammu and Kashmir.

Hence, it is very clear that following law about the State of Jammu and Kashmir is not permanent and that’s why it can be changed.

Article 370 states that:

1. Notwithstanding anything in the constitution,-
2. The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir,
3. The power of Parliament to make laws for the said State shall be limited to-
4. Those matters the Union List and the Concurrent List which, in consultation with the government of the State, are declared by the president to correspond to matters with respect to which the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State; and
5. Such other matters in the said lists as, with the concurrence of the Government of the State, the president may by order specify.

Explaination: For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;

1. The provisions of Article 1 and of this Article shall apply in relation to the State;
2. Such of the other provisions of its 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 in consultation with the Government of the state:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of the Government.

1. 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 sub-clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
2. 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 only with 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.

It is to be concluded that this Article definitely gave Jammu and Kashmir a special status and kept its legislature different from that of other states of India.

The parliament of India could only exercise its power that too in the consultation with the government of the State only on certain subject matters which were specified in the Instrument of Accession namely defense, foreign affairs, and communications. Still as the Constitution of India provides, this particular Article is temporary in nature.

What is POK and Askai Chin? Are they included in Jammu and Kashmir?

• The Pakistan Occupied Kashmir (POK)^[3]

As the name suggests this is the part of Kashmir that has been occupied by Pakistan by the ‘Azad Jammu Kashmir’ troops and is a self-governing entity. This territory shares a border to the north with Gilgit-Balistan which by United Nations and other international organization as Pakistan-administered Kashmir.

This happened because on October 26^th, 1947, Maharja Hari Singh signed an Instrument of Accession, handing over control defence, external affairs communications to the Government of India in return for military aid. There is a cease fire between Indian and Pakistani forces since 1949.

• Askai Chin^[4]

Askai Chin is a region administered by China as part of its Xinjing and Tibet autonomous regions and constituting the eastern portion of the larger Kashmir region which has been the subject of a dispute between India and China since late 1950s. it is separated through a line called LAC (Line of Actual Control).

This dispute was over McMohan line which was maintained by India as legal border but not accepted by China saying that Tibet was not independent when it signed Simla Convention. Also, in 1963, Pakistan illegally leased Shaksgam Valley to China in exchange for military and nuclear technology.

Hence, these are the disputes rendering with border of Jammu and Kashmir.

Whether there are clashes at the border, still Jammu and Kashmir is a part of Union of India. Both the countries have occupied the parts of Jammu and Kashmir and Ladakh illegally.

The illegal possession doesn’t mean that we have backed out or we have given our territory to other countries.

What are the Effects of Scrapping of Article 370?

This revocation of Article 370 would make Jammu and Kashmir ordinary from the special status. Which means that now Parliament can make all the laws which were initially exempted as it makes for the other states.

Jammu & Kashmir assembly would not clear any bills within the state. Some other effects are discussed below:

• Constitution of Jammu and Kashmir

With the effect of The Jammu and Kashmir Reorganization Act, 2019, the State of Jammu and Kashmir, now has to abide by the Constitution of India. No separate constitution would be implemented.

• Citizenship to its people:

Article 370 envisaged dual citizenship to the people of Jammu & Kashmir which is no more applicable now. Only Indian Citizenship will be provided.

• Fundamental Rights of the citizens:

Before the revocation of Article 370, the citizens of Jammu & Kashmir did not enjoy all the rights ensured by the Indian Constitution including the Fundamental rights provided.

But now as the Indian Constitution is applicable only, Fundamental rights under the Constitution are also available including the state rights and property rights.

• National flag and National anthem:

Prior to the in operation of Article 370, Jammu & Kashmir had a privilege to have a different flag as well as their own State anthem. This has now been withdrawn and ‘Tiranga” and “Jana Gana Mana” have been on par with the entire country.

• Working of the legislature:

Now, the legislature of Jammu & Kashmir will be the same as other state legislatures. The Jammu and Kashmir legislature will no longer be able to clear bills with respect to the state. The state has the right to make subjects only on state subjects and concurrent subjects and prescribed in the constitution.

• Ownership of Property:

Initially, only the citizens of Jammu and Kashmir were allowed to buy and sell property in Jammu and Kashmir, but this has extended to all the citizens of the country.

Hence, these were some changes that have been occurred after the in operation of the Article 370.

Case Laws

• Puran Lal Lakhanpal Vs Union of India, 1961^[5]

President has the power to modify the Constitution when making applicable to J&K.

In 1961, in the case, it was held that under Article 370, power has been given to the president of India to vary, amend, modify a constitutional provision in any way he deems necessary, while applying it to the state. The power to do so is with reference to the matters prescribed in the Instrument of Accession.

• Sampat Prakash Vs State of J. & K., 1970^[6]

Modifications can be done even after order has been issued already.

In the case, it was held that the President has power to vary, amend or modify a constitutional provision in any way he deems necessary, while applying it to the State. It not only applied on a state for first time but also make modifications and amendments subsequently after issuance of the order.

• Mohd. Maqbool Damnoo Vs J&K, 1972^[7]

Sardar-i-Riyasat failed to receive assent being violative of Article 370(1).

Challenging to Jammu & Kashmir Preventive Detention (Amendment) Act, 1967 which replaced the Maharaja with The Sardar-i-Riayasat as executive head.

The Supreme Court the Amendment and refers that Jammu & Kashmir Constitution provides for the appointment of a governor instead of a Sardar-i-Riyasat.

• State Bank of India Vs Santosh Gupta & Anr. Etc., 2017^[8]

Securitization and reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 does not apply on J&K`

The Supreme Court overturned the judgment, holding that Parliament’s has legislative competence to enact the provisions because India’s constitution of superior to J&K. The court held that Article 370 (1) (b) does not limit the power of parliament because the Constitution of India is applicable to Jammu & Kashmir via 1954 Presidential Rule.

Conclusion

There is saying by Dr. Bhimrao Ambedkar, “However good a constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad constitution may be, if those implementing it are good, it will prove to be good”^[9]

The government’s decision of inactivating or diluting Article 370 was far daring which can be seen from the way military troops have been sent in Jammu & Kashmir before introducing the reorganization Act in the Parliament. Jammu and Kashmir has a long history^[10] of wars, terror attacks, internal riots and political instability.

This was both a cause and effect of revoking Article 370, which was handled by the troops, even the public has to suffer due to no internet connectivity, communication and the effects Section 144 IPC.

But the main issue is what to do now? Jammu & Kashmir is far less developed and stable in comparison to other states, which is the main concern now. They lack in education, employment and even employability, with a state where internal disturbances as well as Terror attacks are prevalent.

The common public is the one who actually suffered between the hatred of the countries and terrorism. The main focus should be the people who just want peace and better living conditions which they are still not able to get in the heaven of India i.e., Jammu and Kashmir.

Reference

• lawoctopus.com

1. What is Article 370, available at: business-standard.com (Last visited on July 17^th, 2021) ↑
2. EPW Engage, “Article 370: A Short History of Kashmir’s Accession to India, available at: epw.in (Last visited on July 17^th, 2021) ↑
3. Sanjay khajuria, “POK resident apprehended along LoC” available at: /m.timesofindia.coms (Last visited on July 17,2021) ↑
4. Pardip Phajoubam, “The knotty history of the McMohan Line” available at:telegraphindia.com (Last visited on July 17^th, 2021) ↑
5. Puran Lal Lakhanpal Vs. Union Of India, AIR 1961 SC 1519 ↑
6. Sampat Prakash Vs. State of J.& K., AIR 1970 SC 1118 ↑
7. Mohd. Maqbool Damnoo Vs. J&K, AIR 1972 SC 963 ↑
8. State Bank of India Vs. Santosh Gupta & Anr. Etc., (2017) 2 SCC 538 ↑
9. ↑
10. ↑