Article 370- A History

 As per the constitution of India, India, that is Bharat, shall be a union of states and all these states are specified in the first schedule of the constitution and this document itself mentions that the territory of India will comprise of the territories of the states or the union territories specified in the first schedule and any other territories that may be acquired. As per the first schedule, India comprises of 29 states and 7 union territories and recently there was a twist when a presidential order was passed which made article 370 of the constitution inoperative followed by the introduction of the Jammu and Kashmir (Reorganisation) bill, 2019 in the Rajya Sabha by the central government under the leadership of Prime Minister Shri Narendra Modi. This bill was passed by the upper house through a voice vote, with 125 being in favour and 61 against it and the same was also passed by the Lok Sabha with 370 votes in favour and 70 against it and now we have 28 states and 9 union territories.

But what is article 370 and why does it matter so much to our country? To answer all these questions we need to start with the history of our country. After fighting the independence war for years, and after various representations from The Indian National Congress, The Muslim League and the Sikh community an act was formulated by the then Prime Minister of UK, Clement Attlee and the then Governor-General of India Lord Mountbatten, which came out to be known as The Indian Independence Act,1947. This act received the assent of the Royal Family on July 18, 1947, dividing India into two separate dominions of India and Pakistan, but doing so was not that simple because during the time of partition there were 565 princely states, and these were also to be taken into consideration.

After the failure of the Cripps mission and the Muslim league’s demand of a separate state of Pakistan, nothing was clear about the future of the country when Lord Mountbatten came with a plan which was known as the 3rd June Plan or the Mountbatten plan. This plan came out as a remedy to the Indian political scenario and suggested the partition of India and giving both the state of India and the state of Pakistan a dominion status. This plan was incorporated in the Indian Independence Act providing the princely states with the option of either joining the dominion of India or the dominion of Pakistan, they were even allowed to remain an independent and a separate state.

Through a combination of factors, Sardar Vallabhbhai Patel and V. P. Menon convinced the rulers of the various princely states to accede to India. Having secured their accession, they then proceeded, in a step-by-step process, to secure and extend the central government’s authority over these states and transform their administrations until, by 1956, there was little difference between the territories that had been part of British India and those that had been princely states. Further, the Government of India, through a through a combination of diplomatic and military means, acquired de facto and de jure control over the remaining colonial enclaves, which too were integrated into India. Although this process successfully integrated the vast majority of princely states into India, it was not as successful for a few, notably the former princely states of Jammu and Kashmir, Tripura and Manipur, where active secessionist separatist insurgencies continued to exist due to various reasons.

The princely state of Jammu and Kashmir at that time was a muslim majority region ruled by a Hindu king known as Maharaja Hari Singh and Maharaja Hari Singh was hesitant to join the either dominions and so he signed a standstill agreement with Pakistan and proposed one with India as well, but announced that his territory is going to remain independent. However his rule was opposed by Sheikh Abdullah, the leader of Kashmir’s largest political party, the national conference, who demanded his abdication. Pakistan who tried to force this accession, cut off supplies and transport links and there was a civil unrest. Shortly, thereafter Pathan tribesman from the north-west frontier province of Pakistan crossed the border and entered Kashmir. The invaders made rapid progress towards Srinagar. The Maharaja of Kashmir wrote to India, asking for military assistance. India required the signing of an Instrument of Accession and setting up an interim government headed by Sheikh Abdullah in return. The Maharaja complied and Nehru declared that it would have to be confirmed by a plebiscite. Indian troops secured Jammu, Srinagar and the valley itself during the First Kashmir War, but the intense fighting flagged with the onset of winter, which made much of the state impassable. Prime Minister Nehru, recognizing the degree of international attention brought to bear on the dispute, declared a ceasefire and sought UN arbitration, arguing that India would otherwise have to invade Pakistan itself, in view of its failure to stop the tribal incursions. The plebiscite was never held, and on 26 January 1950, the Constitution of India came into force in Kashmir, but with special provision made for the state under article 370 of the constitution. India did not, however, secure administrative control over all of Kashmir. The northern and western portions of Kashmir came under Pakistan’s control in 1947, and are today Pakistan administered Kashmir. In the 1962 Sino India war, China occupied Aksai Chin, the north-eastern region bordering Ladakh, which it continues to control and administer.

. The document of Accession as signed by Maharaja Hari Singh is as under -:

Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August 1947, there shall be set up an Independent Dominion known as India, and that the Government of India Act, 1935 shall, with such omission, additions, adaptations and modifications as the governor-general may by order specify, be applicable to the Dominion of India.

And whereas the Government of India Act, 1935, as so adapted by the governor-general, provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof.

Now, therefore, I Shriman Inder Mahander Rajrajeswar Maharajadhiraj Shri Hari Singhji, Jammu and Kashmir Naresh Tatha Tibbetadi Deshadhipathi, Ruler of Jammu and Kashmir State, in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and

1. I hereby declare that I accede to the Dominion of India with the intent that the governor-general of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter referred to as “this State”) such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August 1947, (which Act as so in force is hereafter referred to as “the Act”).

2. I hereby assume the obligation of ensuring that due effect is given to the provisions of the Act within this state so far as they are applicable therein by virtue of this my Instrument of Accession.

3. I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislatures may make laws for this state.

4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor-General and the ruler of this state whereby any functions in relation to the administration in this state of any law of the Dominion Legislature shall be exercised by the ruler of this state, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.

5. 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.

6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this state authorizing 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.

7. Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.

8. Nothing in this Instrument affects the continuance of my sovereignty in and over this state, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this state or the validity of any law at present in force in this state.

9. I hereby declare that I execute this Instrument on behalf of this state and that any reference in this Instrument to me or to the ruler of the state is to be construed as including to my heirs and successors.

Given under my hand this 26th day of OCTOBER nineteen hundred and forty-seven.

Hari Singh

Maharajadhiraja of Jammu and Kashmir State.

I do hereby accept this Instrument of Accession. Dated this twenty-seventh day of October, nineteen hundred and forty-seven.

(Mountbatten of Burma, Governor-General of India).

As per this above mention instrument, India only got a say on the defence, external affairs and communication as a matter of fact and so special provisions were laid down in the form of article 370 for the newly occupied state, which reads as -:

370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in 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 specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized 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.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this 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 that Government.

(2) 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 provision to sub-clause (d) of that 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.

(3) 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 such 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.

So, until now with these special provisions for the state of Jammu and Kashmir, Jammu and Kashmir had its own constitution and administrative autonomy within the region. In particular, Indian citizens from other states could not purchase land or property in Jammu and Kashmir. But now with the passage of this bill the republic of India will have a complete say on all matters relating to the governance in the state of Jammu and Kashmir. The bill proposed therein also bifurcated the state into two union territories, one the union territory of Jammu and Kashmir with legislature and Ladakh without legislature.