TOPIC : STATE OF JAMMU AND KASHMIR

SUB TOPIC – ARTICLE 370

AUTHOR – HIMANSHU JAISWAL

INTRODUCTION-
Agar firdaus bar roo-e zameen ast,
Hameen ast-o hameen ast-o hameen ast.
Nature has endowed Kashmir with implausible beauty, and no other words in the entire
universe can describe its charm better than this couplet of Amir Khusro. Universally
acknowledged as “paradise on earth”, Kashmir is resplendent with Chinar trees that turn the
entire valley yellow and red as autumn arrives, silver lakes that turn gold in the light of dawn,
and the jewel-blue river that are souls of the ice-cold mountains.

There is no doubt that Jammu and Kashmir is the most beautiful place on earth but a
beautiful place does not ensure the best living conditions and the favourable environment.
J&k remains a matter of conflict between India and Pakistan from the past. On going in
history of J&k it found that India and J&K have always had a strained and weird relationship
with Maharaja Hari Singh reluctant a neutral party,but when Pakistan attacked on J&k to
occupy it, an instrument of accession was undertaken and J&K became an integral part of the
Indian territory.On 14th may 1954,the presidential order named “ Constution (Application to
Jammu and Kashmir) order 1954 which brought into existence article i.e. Article 370 which
gave special status to the state for the time being.

There have been numerous initiative done in order to abrogate the provision and integrate
J&K with India but they have failed as they are not complied with the assent of the majority
and lack the majority in Parliament. However , on the historical date of Aug 5,2019, Prime
Minister Narendra Modi led government abrogated Article 370 overnight and integrated
Kashmir with India.

The objective behind writing on this topic is to know the pros and cons of Abrogation of
Article 370 and its impact in the valley, whether it improve the living condition there or make
it more worse. In this essay the author discuss the Treaty of Accession, Interpretation of
Article 370, Special status of J&K and Contitutional validity of Abrogation order of Article
370.
INSTRUMENT OF ACCESSION :
The ‘instrument of accession’ between Hari Singh and then prime minister Jawaharlal Nehru
was signed on 26 October, 1947. It was accepted by the then Governor General of India Lord
Mountbatten on 27 October.

This accession was legally valid as the Indian Independence Act of 1947, which was signed
by both India and Pakistan, gave sovereignty of the state to Maharaja Hari Singh after the
lapse of British paramountcy and Singh could make his sovereign decisions.

The US representative Warren Austin seconded this view in the Security Council where he
said that with the accession of Jammu and Kashmir to India, this foreign sovereignty went
over to India.

Under this instrument of accession, Jammu and Kashmir surrendered only three subjects,
which was defense, external affairs and communications to the Indian state and earned an
assurance from India that the people of Jammu and Kashmir through their own constituent
Assembly would draft their own constitution.

In this respect an important point as highlighted by DD Basu in his magnum

opus Commentary on the Constitution of India was that while allowing the people of Jammu
and Kashmir to draft their own constitution it was promised that the nature and the 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.
And from this instrument of accession and in the pursuance of the above-mentioned
committeemen Article 370 was incorporated in the Constitution of India.

The most important point of the instrument of accession was that its ruler and formal head
Singh decided and declared that the state of Jammu and Kashmir accede to the ‘Dominion of
India’ with a clear result that from here on "governor-general of India, the dominion
legislature, the federal court and any other dominion authority established for the purposes of
the dominion" will be legally authorised to carry out any function in respect to the state of
Jammu and Kashmir, as vested in them by or under the Government of India Act, 1935.

However, to retain its special status it added two important clause which states:

"The terms of this my Instrument of Accession shall not be varied by any amendment of the
Act or of the Indian Independence Act, 1947, unless such amendment is accepted by me by
an Instrument supplementary to this Instrument.

"Nothing in this Instrument shall empower the Dominion Legislature to make any law for this
state authorising the compulsory acquisition of land for any purpose, but I hereby undertake
that should the Dominion for the purposes of a Dominion law which applies in this state
deem it necessary to acquire any land, I will at their request acquire the land at their expense
or if the land belongs to me transfer it to them on such terms as may be agreed, or, in default
of agreement, determined by an arbitrator to be appointed by the Chief Justice Of India."
INTERPRETATION OF ARTICLE 370 :
The article was included in the Indian Constitution on October 17, 1949, and granted it a
special status which allowed the state an exemption from the Constitution of India and
permitted it to draft its own Constitution, granting it some autonomy.
Article 370 though a “temporary provision” restricted the Parliament’s power in Jammu and
Kashmir, unlike other states governed by the Indian Union. However, it granted the central
government authority over matters of external affairs, defence and communication of the
state. Unlike other states, the Centre did not have the power to alter the boundaries of the
state.
Article 35A of the Indian Constitution, which stemmed out of Article 370, gave powers to the
state Assembly to define permanent residents of the state, their special rights and privileges.
It also stated that the non-permanent residents could not acquire immovable property in
Jammu and Kashmir, or apply and get government employment, scholarships or other aids
provided by the state government.
However, in certain ways, Article 370 also reduced J&K’s powers in comparison to other
states. In fact the Centre has used Article 370 a number of times to amend a number of
provisions of Jammu and Kashmir’s Constitution.
The draft of the Article was prepared after then Prime Minister Jawaharlal Nehru set the ball
in motion and directed Kashmiri leader Sheikh Abdullah to consult then Law Minister BR
Ambedkar to draft it. Eventually, Gopalaswami Ayyangar, a Member of the Drafting
Committee of the Constitution and a union minister, drafted Article 370 in Amendment of the
Constitution section, in Part XXI, under Temporary and Transitional Provisions.
The original draft of Article 370 stated, “the Government of the State means the person for
the time being recognised 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.”
However, in 1952, 15th November the draft was changed to, “the Government of the State
means the person for the time being recognised by the President on the recommendation of
the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and
Kashmir, acting on the advice of the Council of Ministers of the State for the time being in
office.”

The President had the power under this provision to decide as to which provisions of the
Indian Constitution will be applicable to the state, however, the assent of the state was
necessary for the laws to be applicable. Further, Article 35A of the Indian Constitution
granted certain special rights and privileges to the permanent residents of the state like
government jobs, right to scholarships, settlement in the state, etc.

The provision also had protective laws such as a bar on outsiders buying property in the State
and women marrying non-Kashmiris and losing their property rights. The clause specified
that any alteration in the provision would be on the recommendation of the Sadar-i-Riyasat or
the Constituent Assembly.
As per Art 370(3), all the decisions about modification, alteration or abrogation of the
provision was to be done by the President by issuing a public notification with the
consultation of the Constituent Assembly. This clause was supposed to be a temporary
provision, however, any decision on its continuance was to be taken by the Constituent
Assembly of the state which dissolved itself in 1957 after drafting the Constitution.

No decision was taken on the provision by Constituent Assembly before dissolving itself,
thereby granting permanent status to the provision. A new constituent assembly has to be
convened to take some decision in this regard if it was necessary to be taken to maintain the
sanctity of the provision.

Is Article 370 a temporary provision?

Despite several challenges to the provision on account of it allegedly being a temporary

provision, the Supreme Court as well as the high courts have repeatedly upheld that Article
370 is indeed a permanent provision of the Constitution. In a judgment delivered in 2018, the
top court said that though the article’s title noted it as ‘temporary’, it was very much of a
permanent nature.

“The issue concerned is covered by the judgment of this court in the 2017 SARFAESI matter,
where we have held that despite the headnote of Article 370, it is not a temporary provision,"
a Bench of justices A K Goel and R F Nariman had then said.

The legislative history of Article 370 does not suggest that it was supposed to be
temporary.When the original draft clause was proposed in the Constituent
Assembly of India by minister Sri N Goplaswami Ayyangar, he said it was
needed because of a number of special circumstances, which the court found had
not changed in 1968 – and have not changed at present either .

Article 370 in the part XXI of the constitution of India provides a special status to the state of
Jammu and Kashmir. The special status provided the state with considerable autonomy and
most of the decision was taken by center and in consent with the wishes of the state
government, excluding external affairs, defence, communications and ancillary matters.

CONSTITUTIONAL VALIDITY OF ABROGATION ORDER :

On August 5, 2018, the government proposed abrogation of Art. 370 of the Indian
Constitution further proposing Jammu and Kashmir Reorganisation Bill, 2019(hereinafter
referred to as “Reorganisation bill”) which divided Jammu and Kashmir into 2 union
territories- Jammu and Kashmir and Ladakh, the former will have a legislative assembly
while the latter will not have the same.

The Presidential Order was passed by President Ram Nath Kovind. For their convenience,
the government also added certain “Interpretation clauses” to Art. 367 of the Indian
Constitution wherein the reference to “Constituent Assembly” was to be read as “Legislative
Assembly of the State” and all the references to “Sardar-i-Riyasat” will be considered as
referring to Governor of the State.

The government used this provision as a loophole and imposed Governor’s Rule in the state
which basically transferred all the powers to the governor under Prime Minister, who
abrogated the provision without consultation with the State Government and its leaders,
instead put them under house arrest to avoid any resentment. This was how the present
government territorially integrated Jammu and Kashmir into India.

Looking at the process constitutionally, we see how the Government ignored Article 370(3)
which talks about consultation with the Constituent Assembly and amended it as per their
convenience, putting the powers under the scope of the legislative government which was
never decided upon.

This Reorganization bill also affects the 1954 Presidential Order passed with regard to
Jammu and Kashmir as Article 3 had a proviso which specified that “no bill providing for
increasing or diminishing the area of the State of Jammu and Kashmir or altering the name
or boundary of that State shall be introduced in Parliament without the consent of the
Legislature of that State” and this provision was also breached as no consent or concurrence
of the Legislature/State Government was taken at any point.

Instead they were locked down by imposing Sec. 144 of CrPC and President’s Rule was
imposed in the entire state even when there were no instances or reasons to impose
President’s Rule in the state which is supposed to be imposed in case of any reason for the
President to believe that the constitutional machinery is broken down or for the governor to
inform that he cannot handle the state functioning.

Looking at it from basic human rights angle, the move by Centre was abrupt and was
disenfranchised as it directly affected the life and sentiments of the residents whose voices
were silenced and unheard. Further, it happened after a massive military build-up and the
house arrest of senior political leaders, the communications shutdown in the area reveals how
the democratic norms were disregarded completely by depriving them of their constitutional
rights under Article 21 to live with dignity and Article 19 which talks about freedom to
speech and expression.

They were not given the right to express their opinions and views on something that affected
them which basically took away their basic constitutional right, not to forget the basic
international human rights as mentioned in UDHR which India is a signatory to. Hence this
move by Centre was unprecedented and cannot be classified as a historic move as the way it
was implemented was in a way a joke out of democracy and seeing it as a precedent will have
various dangerous and unintended consequences.

This is how our government has abrogated the most disputed article 370. It is true that it has
been the consequence of the historic move by the Government of the country without taking
into consideration how it will affect all the sections of the society.
CONCLUSION :
It is impossible for any person to make a fair thought on a matter without thoroughly
knowing it. Here therefore we read each and every aspects relating to Jammu and Kashmir
and its special status conferred through the Article 370. As Indian, it is easy to be biased
towards nation and appreciate its integrity but as a law student one has to be reasonable in his
views.

Narendra modi led government make all the possible measure for protection before the
abrogation of article 370. This is massive step to combat with increasimg terrorist activities in
economy. Now India would have direct control over J&K and also over the major power i.e.
Youths. Criticizing government decision on ground of breakdown of communication in
valley is a prudent one, as we all know Kashmir is a bone of contention between India and
Pakistan and on a revoke to this abrogation Pakistan will definitely active its sources and
result in terrorist activities, which I think would not be desired by any person.