Author : Mahi Jha, a student at Chanakya Law College
ABSTRACT
Article 370 of Indian Constitution conferring special status to the erstwhile state of Jammu & Kashmir, has been deemed by legal experts as a constitutional and legal bridge between India and Jammu & Kashmir which is now a union territory of India. This legal article delves into the genesis, implication, and contemporary relevance of Article 370, intricately dissecting its constitutional nuances. A critical examination is undertaken, scrutinizing the abrogation of Article 370 in light of constitutional amendments and pertinent legal precedents. Anchored in constitutional provisions, this article substantiates the constitutional validity of the abrogation, meticulously analysing its implications on the unity and integrity of the nation, within the framework of legal jurisprudence.
INTRODUCTION
Article 370 often considered a constitutional enigma is a contentious provision given to the region of Jammu & Kashmir, and has been a focal point of legal and political discussions and intense debate. In legal terms, Article 370 of Indian Constitution is often described as a “special provision” conferring autonomy to the state of Jammu & Kashmir, outlining unique constitutional arrangements that differ from other states within the Indian Union. While Article 370 served as a mechanism to maintain a connection between Jammu and Kashmir and rest of India, opinions diverge on its impact. Some argue it played a role in fostering unity, while others contend that it posed challenges to the overall integrity of India, contributing to divisions in the nation.
HISTORY OF JAMMU & KASHMIR
- Formation of Jammu & Kashmir :-
Jammu & Kashmir was a princely state in a subsidiary alliance under British rule in India. The princely state was created in 1846 after the first Anglo-Sikh War when East India Company annexed the Kashmir Valley from Sikhs, and sold it to King of Jammu, Gulab Singh for 75 lakh rupees.
- After Independence Scenario :-
In 1947, India got independence along with partition of Pakistan, and from there Jammu & Kashmir became a disputed territory. All area occupied by British government was given back to Indian Union, except the Princely States. So, rulers of Princely states were given three options, i.e. to join India, to join Pakistan, or to remain an independent state. By the virtue of Sardar Vallabhbhai Patel, 565 Princely states agreed to sign the instrument of accession. But there were few Princely states who either wanted to join Pakistan or remain Independent, and Jammu & Kashmir was one among them. Somehow other princely states later merged with Indian Union, but Jammu & Kashmir created lot of tension.
- Problems of Accession :-
Maharaja Hari Singh, the ruler of Jammu & Kashmir, faced a challenging decision as he wanted Kashmir to remain an independent state. It was a dilemma for him as, if he joined India his Muslims subjects would be unhappy who were in majority, if he joined Pakistan then he knew that a Hindu ruler won`t be able to sustain in Pakistan, also he didn’t want to end his rule. Hence, on 12th August 1947, Maharaja Hari Singh signed the Standstill agreement to delay the decision on accession.
- First Indo-Pakistani War :-
In October 1947, tribal militias, consisting Pashtun tribesman supported by the Pakistani government attacked Jammu & Kashmir with an intention to invade it. The invasion followed by huge communal violence and genocide of non-muslims. This attack was a key factor that forced Maharaja Hari Singh to seek military assistance from India, as now Maharaja realised that his forces were unable to repel the invasions. India extended military assistance to Jammu & Kashmir in October 1947, after signing the Instrument of Accession. Indian forces engaged in war with tribal militias, and the war started on 22 October 1947, and ended after ceasefire on 1st January 1949. India emerged victorious by gaining control over 2/3rd of Jammu & Kashmir, while Pakistan invaded 1/3rd of Jammu & Kashmir. After ceasefire, the areas occupied by Pakistan came to be known as LOC (Line of Control).
- United Nation Security Council Resolution :-
The first Prime Minister of India, Jawaharlal Nehru sought to internationalize the issue of Jammu & Kashmir by taking it to the United Nations. During war, Nehru approached UNSC and lodged a complaint about Pakistan`s tribal invasion in Jammu & Kashmir. UN Security Council passed resolution calling for a ceasefire, directing both India and Pakistan to withdraw their forces from Jammu & Kashmir. India accepted the ceasefire which came to be known as Karachi Agreement. UNSC resolution stated to conduct plebiscite and citizens of Jammu & Kashmir will decide their fate. But plebiscite never happened, as it has a pre-condition that both countries should withdraw their armies from the region, but Pakistan did not comply with UN did not withdraw from LOC. Even India did not withdraw its army for security reasons.
ARTICLE 370
- Origin of Article 370 :-
The main reason behind the origin of Article 370 can be traced back to historical context at the time of signing the Instrument of Accession in October 1947, by Maharaja Hari Singh to integrate Jammu & Kashmir to Indian Union. The Instrument of Accession allowed Jammu & Kashmir to be a part of India, but the terms of accession, which were also called as special conditions were negotiated between Maharaja Hari Singh and Government of India. Those special conditions that joined India and Jammu & Kashmir, later change to Article 370. Thus, the special conditions of Instrument of Accession were the origin of Article 370.
- Need for Article 370 :-
Article 370 was introduced as it was necessary at that time to ensure the integrity of nation and to foster a special relation between Jammu & Kashmir and Union of India. At that time of insurgency, main focus was to unite India, hence in order to integrate Jammu & Kashmir, Indian government had no other option left other than accepting all the special conditions of accession, which was given a position in Indian Constitution in form of Article 370.
- Provisions Under Article 370 :-
Article 370 was added as a temporary provision in the Constitution of India which gives autonomous status, provides six special provisions for Jammu and Kashmir:
- The state is exempt from the complete applicability of the Constitution.
- The state has the power to have its own constitution.
- Central legislative powers over the state are limited to defence, foreign affairs, and communications.
- The state has autonomy in matters of internal administration.
- The state has a state flag.
- The state has control over internal administration, except in matters of defence, foreign affairs, finance, and communications.
ARTICLE 35A
- Origin of Article 35A :-
While the constituent assembly of Jammu & Kashmir was forming, i.e. from 1951 to 1956, till then Congress ruled in Jammu & Kashmir. Sheikh Abdullah who was a representative of Jammu & Kashmir and played a crucial role in accession of state to India, made many demands to Prime Minister Jawaharlal Nehru regarding the new policies of administration, one among those demands was that Jammu & Kashmir`s demography should not be changed until plebiscite to preserve its values. This was adopted as Article 35A in Indian Constitution.
- Delhi Agreement of 1952 :-
In 1952, Sheikh Abdullah entered into discussions with PM Jawaharlal Nehru, leading to the signing of Delhi Agreement. The agreement outlined the terms of Jammu & Kashmir`s relationship with the Union of India and addressed issues of autonomy, governance and constitutional provisions.
- Presidential Order of 1954 :-
In 1954, a presidential order was issued under Article 370 of the Indian Constitution. Article 35A was added through this order. The addition was made to empower Jammu & Kashmir state legislature to define permanent residents of the state and confer upon them special rights and privileges.
- Provisions under Article 35A :-
Article 35A is not directly mentioned in Indian Constitution, but covered under special provisions and followed as a presidential order of 1954. Article 35A of the gave the state legislature the power to define who is a “permanent resident” of the state and to grant them special privileges. The article also allowed the state legislature to impose restrictions on people who are not permanent residents.
Some of the provisions of Article 35A include:
- Permanent residency- The article gave the legislature the power to decide who would be granted permanent residency in the state.
- Special privileges- The article provided special privileges to permanent residents, such as the right to purchase property and acquire government jobs.
- Restrictions- The article prohibited non-permanent residents from permanent settlement in the state, acquiring immovable property, government jobs, scholarships, and other aid.
ABROGATION OF ARTICLE 370 AND 35A
The abrogation of Article 370 and 35A was a historic decision taken by Government of India on 5 August 2019. This was accomplished through a series of Presidential order and Parliamentary Resolution.
- Presidential Order :-
The abrogation process began with a presidential order issued on August 5, 2019, utilizing the powers granted under Article 370(1) of Indian Constitution.
- Parliamentary Resolution :-
A concurrent resolution was passed by both houses of Parliament, recommending the abrogation of Article 370 and the reorganization of the state.
- Reorganization of Jammu & Kashmir :-
Jammu & Kashmir was reorganised into two separate Union Territories – Jammu & Kashmir and Ladakh. This meant the regions no longer has special autonomy but were directly governed by the central government.
- Abrogation of Article 35A :-
Article 35A was closely linked to Article 370, as it derived its authority from the special provisions granted to Jammu & Kashmir. The abrogation of article 370 automatically led to abrogation of article 35A, removing the special privileges and rights granted only to residents of Jammu & Kashmir.
- Aims and Objectives :-
This decision aimed at integrating Jammu & Kashmir more closely with rest of India, removing special rights and maintaining equality. This abrogation led to end of autonomy of Jammu & Kashmir and dissolution of its constitution and flag. The laws of Indian Constitution will only be applied and followed in entire country including every state.
JUDICIAL REVIEW
After abrogation of Article 370, approx. 23 petitions were filed in Supreme Court, questioning the constitutional validity of the move. On 11 December 2023, five senior-most judges of the Supreme Court upheld the Union government’s action to abrogate Article 370, which granted special status to Jammu and Kashmir. The Chief Justice of India D.Y. Chandrachud given a statement that as Article 370 was a temporary provision and also Jammu & Kashmir did not have any internal sovereignty, hence the abrogation is justiciable.
CASE LAWS
- Prem Nath Kaul V. Jammu & Kashmir (1959) :-
This case dealt with the constitutional validity of laws and regulations in the state of Jammu & Kashmir. This case is important in context of Article 370 and the autonomy granted to state.
Prem Nath Kaul, a resident of Jammu & Kashmir, challenged certain state laws that he argued were violative of fundamental rights guaranteed under Indian Constitution.
The court in its judgement had to navigate the delicate balance between special provisions granted to state and the fundamental rights.
- Sampat Prakash V. Jammu & Kashmir (1968) :-
This case dealt with the constitutional validity of certain provisions in laws of Jammu & Kashmir. Sampat Prakash, a political activist, challenged his detention under Jammu & Kashmir Detention Act, 1964.
The case was significant for addressing the balance between preventive detention laws and individual liberties.
The Supreme Court in its judgement struck down certain provisions of Jammu & Kashmir as unconstitutional, addressing the need to prevent arbitrary use of power.
- Begum Shamim Ara V. Jammu & Kashmir (1972) :-
It was a significant case that addressed inheritance rights in Jammu & Kashmir, particularly concerning women.
Begum Shamim Ara, a resident of Jammu & Kashmir, challenged the constitutionality of certain provisions in Jammu & Kashmir Succession Act 1956, that discriminated against women in matters of inheritance.
The court in its judgement, declared certain provisions of Jammu & Kashmir Succession Act, 1956, as unconstitutional. The decision affirmed the principle that a woman`s permanent resident status and inheritance rights should not be affected by her marriage to a non-permanent resident.
CONCLUSION
In conclusion, Article 370 of Indian Constitution, initially designed as a temporary provision, evolved into a complex legal and political entity. Its grant of special autonomy to Jammu & Kashmir stirred debates on unity, integrity, and the nation`s identity. The subsequent abrogation on August 5, 2019, marked a significant departure, triggering shifts in constitutional dynamics. As the region adapts to its new status, the legacy of Article 370 remains a nuanced chapter in India`s history, reflecting the ongoing quest to reconcile diverse identities within the framework of a united nation.
