CONSTITUTIONAL HISTORY OF JAMMU AND KASHMIR IN THE LIGHT OF ARTICLE 370

1. INTRODUCTION

Before independence, there were 562 princely states in British India and Kashmir was one those states that were not under the British rule directly. After independence, the Indian government asserted that Kashmir should be acceded to India and only then it would send the armed forces. This made the King agree to the accession and both parties signed the Treaty of Accession (“The Instrument”) on October 26, 1947. 

2. CONSTITUTIONAL HISTORY & REASONS FOR INCORPORATING ART. 370

First of all, the question arises as to why Article 370 was incorporated in the Constitution of India. The reason for this was given by Gopalaswami Ayyangar that for various reasons Kashmir was not like other merged princely states because it was not ready for amalgamation with India. India had been battling with Pakistan over the state of Jammu and Kashmir and there was a ceasefire, the conditions had not improved were uneasy. Another important event was the opposition by Sardar Vallabhbhai Patel to Article 370. Pandit Nehru was undeniably uncompromising and passionate about Kashmir.[1] Although Patel was highly cynical that it did not adhere to the fundamental rights and directive principles of State policy enshrined in the Constitution, he still played a role. However, Article 370 is not in its old form. It is a big myth. After Independence, many Presidential Orders have worn out Article 370 in a significant way. Then, the succeeding series of Presidential Orders have changed the situation in such a way that many Central laws and provisions are applicable to Jammu and Kashmir. There is practically no organization of the Indian Union that excludes Jammu and Kashmir from its ambit. The major distinctions are that most other States deal with permanent residents or citizens and their various rights and duties; the Emergency provisions cannot be applied due to reason of “internal disturbance” without the agreement of the State; and other things such as the name and borders of the State because this cannot be changed without prior consent of the State legislature.
However, Jammu and Kashmir is not unique in this regard because there are other provisions for various States also which have been incorporated under Article 371[2] and Articles 371-A to 371-I. A big topic of debate again is the revoking of Article 370 unilaterally. Clause 3 says that the President may declare by a public statement that the Article is inoperative but it can be done only when recommended by Constituent Assembly of Jammu and Kashmir. This means that Article 370 can be revoked but only if there is a new Constituent Assembly in Jammu and Kashmir which has been assembled and had recommended the revocation of Article 370. 

3. THE SCOPE OF AMENDMENT OF ART. 370

Article 370 cannot be amended. In the Constitution, Article 368[3] is applicable to all the states of Indian Union except Jammu and Kashmir. A proviso was added to Article 368 which states that any constitutional amendment will not have any effect with relation to Jammu and Kashmir until it has been applied by any order assented to by the President of India as per Article 370 of the Constitution. However, any such amendment as per Article 368 necessitates the issuing of an order by the President as per Article 370. This will, in turn, require the state government’s agreement under Clause (1) (d) of the present article.

4. THE MAGNITUDE OF REPEALING ART. 370

A likely significance of repealing this Article would be destabilizing of the relationship of Jammu and Kashmir with India. Article 1 lists all the territories of India and can be applied to Jammu and Kashmir but by virtue of Article 370 and hence the extermination of Article 370 would result in the removal of Jammu and Kashmir from the list of constitutional territories of Indian Union. It comes again to a full circle because the use of Article 1 for Jammu and Kashmir is dependent on Article 370 and the annulment of Article 370 will destroy the association between India and the State of Jammu and Kashmir.

Author: - Sumaira Imtiaz, National Institute of Study & Research in Law, Ranchi
Contact: - sumaira.nusrl@gmail.com

[1] S.R. Weisman,  Kashmir: A Story of 'Blowback' in Paradise, New York Times. (July 18, 1999) https://www.nytimes.com/1999/07/18/opinion/editorial-observer-kashmir-a-story-of-blowback-in-paradise.html
[2] INDIA CONST. art. 371

[3] INDIA CONST. art. 368.