Article 370: The Unspeakable Story

INTRODUCTION

“Indian Constitution is a political manuscript rather than legal treaties”

This Statement signifies the nature of the supreme law of the sovereign republic of India. Article 370 provides a special status to the State of Jammu and Kashmir by virtue of which the State legislature has more legislative power than the central legislature in contrast to the position with other States of the Union. The Constitution came into force on 26^th January 1950 and with it, Article 370 of the Indian Constitution deals with the special status given to the state of Jammu & Kashmir. It provides a fairly high degree of autonomy to the state, enables the state to have its own constitution (unique in an Indian context) which permits the state to give some special privileges to its "permanent residents". One such special privilege is that only a permanent resident can buy land in the state and citizens from other Indian states face some restrictions. 

The article 370 was enacted with much displeasure to India's founding fathers such as Vallabhbhai Patel and Bhimrao Ambedkar. Article 370 was discussed by Hon’ble Prime Minister Jawaharlal Nehru and his colleagues with the Prime Minister of Jammu and Kashmir, Sheikh Mohammad Abdullah, and his colleagues; from May to October 1949.

The reality of ‘the special status of Jammu and Kashmir that it is not wrinkled by outflow of time or damage of the elements. It was exposed by conscious executive acts on his advice through one Presidential Order one after another. The State had acceded to India in 1947 in respect only of Defence, Foreign affairs, and Communication.

PROVISIONS FOR JAMMU & KASHMIR UNDER ARTICLE 370:- Article 370 embodies six provisions for Jammu and Kashmir i.e.

• First, it exempted the State from the provisions of the Constitution providing for the governance of all the States. Jammu and Kashmir was allowed have their Constitution.
• Second, Parliament’s legislative power over the State was restricted to three subjects- defence, foreign affairs, and communications.
• But, thirdly if other ‘Constitutional’ provisions or other Union powers were to be extended to Kashmir, the prior ‘concurrence’ of the State Government was required.
• Fourthly , this concurrence had to be ratified by the State’s Constituent Assembly.
• Fifthly, the ‘State Government ‘s authority to give ‘concurrence’ lasts only till the State’s Constituent Assembly for the purpose of framing the Constitution of the State is convened, it is an ‘interim’ power.
• finally, what additional subjects to confer on the union, and what other provisions of the Constitution of India should get extended in the State Constitution itself. Once the constituent Assembly had finalized the scheme and dispersed, the president’s extending powers ended completely.
• The sixth special feature, the last step in the process, is that Article 370(3) empowers the president to make an order abrogating or amending it. But for this also ‘the recommendation’ of the State’s Constituent Assembly ‘shall be necessary before the President issues such a notification’.

Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution of India which apply to all the other States; namely, Article 368.

HISTORICAL BACKGROUND OF ARTICLE 370

• Origin of Article 370: - The Constitution of India came into force on 26^th January, 1950 was result of the inexorable efforts of the makers of our Constitution for more than 2 years. Article 1 of our Constitution defines India as a union of States and union territories as enumerated in schedule -1. At that point of time whole country was divided into two parts i.e. British India and princely States. The Preamble of the Constitution describes India as a sovereign democratic republic. The makers of our Constitution had a tough task to make agreement with the than Rulers for surrendering their unequivocal authority which was reconciled by taking all the political as well as legal recourse available at that time. But, despite all these hard work three States i.e. Mysore, Hyderabad, and Jammu and Kashmir were resultant to join the republic of India.
• Event leading to the creation of the State of Jammu and Kashmir: - The Jammu and Kashmir State was founded in 1846, after the Sikhs were beaten in the First Anglo-Sikh war and the territories of Sikh empire situated between the rivers Sutlej and Sind and including Jammu, Kashmir, Hazara Chamba, and the limit divisions of Ladakh and Baltistan were transferred to Gulab Singh, a Dogra Rajput. The first Anglo-Sikh war broke out in December 1845, when The Sikhs crossed the Sutlej River to strengthen their frontiers around which the British had begun to establish themselves. The most decisive Battle of the first Anglo-Sikh war was fought at Sobraon where the Sikhs were finally beaten. As a prize for their victory, the British demanded from the Sikhs, the territories situated between rivers Sutlej and Bias and a war indemnity of one and a half crore of rupees. The Sikhs agreed to give up the territory the British claimed, but refused to pay the indemnity. Instead, they offered to cede additional Sikh territories to the British situated between Bias and the river Indus, including the provinces of Jammu, Kashmir, Hazara, the divisions of Kulu, Mandi, Nurpur, Kangra and Chamba, and the frontier regions of Ladakh and Baltistan.
• Treaty of Amritsar: - Treaty of Amritsar was concluded between the British and Gulab Singh on 16 March 1846. Hazara proved far too confused for the Dogra chief to hold and he exchanged it with an equal extent of territory situated east of Jhelum in Jammu. The Treaty of Amritsar, signed on 16 March 1846, formalized the arrangements in the Treaty of Lahorebetween the British           East     India    company & Company Gulab Singh Dogra after the First Anglo-Sikh War. The Treaty of Amritsar marked the beginning of Dogra rule in the State of Jammu and Kashmir.
• Maharaja Pratap Singh: - Maharaja Pratap Singh ascended to the throne in 1885 A.D. despite a shot interruption due to his deposition by the Britishers Government in 1889; his reign lasted for about forty years.
• Maharaja Hari Singh: - Sir Pratap Singh died in 1925, intestate. He was succeeded by his nephew Hari Singh, the only son of his brother Amar Singh. Following the death of his uncle Sir Pratap Singh in 1925, Sir Hari Singh ascended the throne of Jammu and Kashmir. He made primary education compulsory in the State, introduced laws prohibiting child marriage, and opened places of worship to the low castes. Hari Singh was hostile towards the Indian National Congress and also opposed the Muslim League and its members' communalist outlook illustrated in their two-nation theory. During the Second World War, from 1944–1946 Sir Hari Singh was a member of the Imperial War Cabinet.

INSTRUMENT OF ACCESSION:

On July 5, 1947, the States Department was set up in India to conduct its relation with the Indian States later Lord Mountbatten speaking at a conference of the Rulers and Representatives of Indian States on July, 25, 1947 said that “the Indian independence Act releases the States from all their obligations to the crown. The States have completed freedom-technically and legally they are independent.” He also declared that the majority of the States were geographically situated in such a way that they could not make their link with the Dominion of Pakistan, the only alternative left to them was to make link with the Dominion of India. Lord Mountbatten expressly recommended that they should surrender to the Dominion of India three subjects- Defence, External Affairs, and Communication.

ROLE OF UNITED NATION ON MERGER OF JAMMU AND KASHMIR WITH INDIA

On 26 october,1947 State of Jammu and Kashmir become a part of India Union. but its status is different than other States. India went to the United Nations on 1 January 1948 with a complaint of aggression by Pakistan under Article 35 of Chapter VI of the Charter. Within weeks, Pakistan filed a counter-complaint against India. Among other things it accused India of aggression in two other Princely States: Junagadh and Hyderabad. A Security Council resolution of 17 January 1948 called upon both India and Pakistan to “improve the situation”. On 20 January 1948 the Security Council resolved to set up a UN Commission for India and Pakistan and directed it “proceed to the spot as quickly as possible”. Another UN resolution of 13 August 1948 proposed a Cease Fire Order (Part I), At the time of ceasefire in January 1949, Pakistan had large part of the State in its occupation. This war between India and Pakistan too failed to solve the dispute one way or the other. The war ended with the “Tashkent Declaration’ brokered by the Soviet Union in September 1965. The 1971 war or the latest military attempt by Pakistan in Kargil to solve the problem through military means has also failed.  Large-scale communal violence between Hindus and Muslims at the time of the partition of the country led to large migrating of population from one part to another. This cross-border migration included the State of Jammu and Kashmir. On the Indian side of the State, a large number of Kashmiri Pandits (Hindus) have since the nineteen-nineties been forced to leave the valley, and many of them are living in the refugee camps in Jammu and other parts of India.

RECENT DEVELOPMENTS

• The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution”, has not abrogated Article 370. While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir.
• The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”.
• With Indian-administered Kashmir's special status repealed, people from the rest of India would have the right to acquire property in Jammu and Kashmir and settle there permanently.
• Kashmiris fear the move would lead to a demographic transformation of the region from majority-Muslim to majority-Hindu. The government have not just struck down the provision of 370, but they have actually dismantled the fate of Jammu and Kashmir as it existed in the Indian constitution.
• It now consists of union territories which are centrally governed - Ladakh and Jammu and Kashmir. This is a sort of a radical new provision, which many people are saying will require a constitutional amendment.

JUDICIAL VERDICTS ON ARTICLE 370

The Supreme Court has held that the President's power to apply the Indian Constitution to J&K with suitable "modifications" under Article 370 includes the power to radically amend the Constitution as far as it applies to that state.

In Puranlal Lakhanpal v. President of India, the petitioner challenged a provision of the 1954 Presidential order which modified Article 81 of the Indian Constitution in its application to J&K. The petitioner argued before the Supreme Court that the President's power to apply the Indian Constitution to J&K did not give him the power to radically transform the Constitution. Rejecting this argument, the Supreme Court held that Article 370 was to be given the "widest possible amplitude." Under it, the president could "efface" a provision and could also amend it radically.

In another case, P.L. Lakhanpal v. State of J&K, the petitioner was aggrieved by the fact that he was not informed by the authorities why he had been arrested under a preventive detention statute. This was possible because of Article 35(c) which had been inserted by the President into the Indian Constitution only as far as it applied to J&K. The S.C held that the insertion of this provision into the Constitution in its application to the state was consistent with the President's powers under Article 370.

In Prem Nath Kaul v. State of J&K, the Hon’ble S.C.  held that "the Constitution-makers attached great importance to the final decision of the Constituent Assembly" and held that the President's powers under Article 370 could only be continued if the Constituent Assembly of J&K gave its "final approval" for him to do so.

However, in a subsequent case, Sampat Prakash v. State of J&k, the court held that since the Constituent Assembly of J&K had not expressly put an end to Article 370, it would be considered as operational even after the Constitution of J&K came into being and the Constituent Assembly was dissolved.

 An interesting question came up before the Hon’ble S C in Mohd. Maqbool Damnoo v. State of Jammu and Kashmir. On 24 November 1965, the President issued an order under Article 370 of the Constitution which amended Article 367, the definition clause of the Constitution. The Hon’ble court held that it was "not concerned with the question whether Article 370(3) can now be utilized to amend the provisions of Article 370(1) and (2)" and it therefore did not "express any opinion on that point."

Finally, in State Bank of India v. Santosh Gupta, the Hon’ble Court held that the State of J&K had "no vestige of sovereignty outside the Constitution of India" and that the J&K Constitution was subordinate to India's Constitution. However, the court reiterated that the president cannot issue an order ceasing to make Article 370 operative without the recommendation of the Constituent Assembly of J&K.

THE AUGUST 2019 AMENDMENTS

In an entry in his diary in 1952, President Rajendra Prasad presciently wrote: "Our Constitution has given several powers to the President of India which includes the power to impose President's rule in a State in case of emergency", and "Kashmir is a part of India and the Constituent Assembly of Kashmir cannot take any decision arbitrarily."

On 19 December 2018, the President of India issued a proclamation under Article 356 of the Constitution. Three things happened in quick succession thereafter that fundamentally changed the constitutional status of J&K:

• Firstly, on 5 August 2019, the President of India issued an order, including special provisions like Article 35(c) and Article 35A which had applied to J&K.
• Secondly, both houses of parliament issued a recommendation to the President to make Article 370 cease to be operative. Consequently, that following day, on 6 August, the President issued a declaration, C.O. 273, making Article 370 redundant
• Thirdly, on 9 August 2019, Parliament enacted the Jammu and Kashmir Reorganization Act, 2019, which took away the statehood of J&K altogether and carved up the state into two union territories: Jammu and Kashmir, and Ladakh.

CONCLUSION

The actions of the government in abrogating Article 370 and in changing the status of J&K have been challenged before the Supreme Court. The apex court now has the task of deciding whether Article 370 of the Constitution can be abrogated without the concurrence of the elected representatives of J&K, and only on the consent of Parliament while the state is under President's rule.