Article 370 to statehood demand: J&K’s evolving constitutional status - The Indian Express

As Chief Minister Omar Abdullah brought a resolution seeking immediate restoration of statehood for Jammu and Kashmir in the Assembly on Monday (September 28), several amendments were moved, some of which sought the inclusion of Articles 370 and 35 A, which existed before August 5, 2019. The amendments were later withdrawn, but brought under the spotlight the various constitutional provisions associated with Jammu and Kashmir.

Article 370 of the Indian Constitution provided for special status to Jammu and Kashmir, ensuring that Parliament could legislate on just three subjects in relation to the state — defence, foreign relations and communication. These were mentioned in the Instrument of Accession that made the princely state of Jammu and Kashmir a part of India. Jammu and Kashmir was allowed to have its own constitution, standing apart from other states of the Union. Only Article 1, defining the territory of India, and Article 370 itself applied to the state, apart from extension of subjects under the aforesaid three subjects.

After the ruler of Jammu and Kashmir, Raja Hari Singh, tried to stay independent amid the Partition of India, Pakistan, which laid claim to the province on account of it having a Muslim majority population, sent irregular troops, or Kabailis, to capture Kashmir in October 1947. A worried Hari Singh signed the Instrument of Accession on October 26, 1947, and Indian soldiers began pushing back the invaders.

India took the Kashmir case to the United Nations Security Council in January 1948, and the newly established UN Commission for India and Pakistan (UNCIP) mediated a ceasefire.

UN Security Council Resolution 47 asked both sides to demilitarise so that a plebiscite could be held to determine the wishes of the people of Jammu and Kashmir. Since demilitarisation never happened on either side, the resolution remained a dead letter.

Article 370 was adopted by the Constituent Assembly on October 17, 1949. During the debate, member of the Drafting Committee of the Constituent Assembly, N Gopalaswami Ayyangar, said: “That particular State is not yet ripe for this kind of integration. It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States. At present it is not possible to achieve that integration.” He said: “Part of the State is still in the hands of rebels and enemies. We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.”

People from outside required a permit to visit the state, and were barred from buying land there.

However, opposition to Article 370 began soon afterwards. A key face of the opposition was Jana Sangh founder Syama Prasad Mookerjee.

On June 26, 1952, Mookerjee pressed the Centre to convince Jammu and Kashmir to accept full integration with India. The Jana Sangh and Jammu’s Praja Parishad widely adopted a slogan: “Ek desh mein do vidhan, do pradhan aur do nishan nahin ho sakte (in one nation, there cannot be two constitutions, two prime ministers and two flags).” Amid controversy, the Jawaharlal Nehru government and the Jammu and Kashmir government signed the Delhi Agreement in July 1952, under which the state accepted the jurisdiction of the Supreme Court. It also accepted the supremacy of the Indian flag, though the state’s flag would also remain in use. It further accepted the President of India’s power to declare a state of Emergency in the state under Article 352, subject to the concurrence of the state, in the event of internal disturbances.

While some in Jammu and Kashmir opposed these measures, on the other side, demands for complete integration of Jammu and Kashmir with India were being put forward by the Praja Parishad in the state as also by the Jana Sangh and, much later, its successor, the BJP.

In August 1953, Shaikh Abdullah, the prime minister of Jammu and Kashmir, was arrested. On August 10, 1953, Jawaharlal Nehru made a statement in Parliament about J&K, saying that while the talks of a “merger” going beyond the agreements in place were improper, a “weaker association” of the state with India was also not desirable. The differences between the advocates of the two positions in the state had created a situation wherein its government was “divided and ceased to function effectively.” Abdullah was succeeded by Bakshi Ghulam Mohammad as prime minister; under him the state moved closer to integration with India.

A Presidential Order in 1954, issued under the authority of Article 370, added Article 35 A to the Constitution in Appendix 1 as an annexure to the official text. Article 35 A was a legal provision that flowed from Article 370. It gave the Jammu and Kashmir Assembly the power to decide who is a “permanent resident” of the state and extend special rights and privileges — such as right to own property, and access to government jobs and scholarships — to the residents so defined.

On August 5, 2019, the government rendered Article 370 inoperative through the Constitution (Application to Jammu and Kashmir) Order, 2019, which superseded the Constitution (Application to Jammu and Kashmir) Order, 1954.

This rendered null and void the separate constitution of the state and extended all provisions of the Indian Constitution to it.

It used Clause 3 of Article 370 for this purpose. This clause said: “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.”

Since the constituent assembly of Jammu and Kashmir no longer existed, the President used Clause (1) of Article 370, which conferred on the President the power to modify the Indian constitution on matters relating to Jammu and Kashmir. For this, the phrase ‘Constituent Assembly of the State’ was replaced with ‘Legislative Assembly of the State’ in Article 367.

The state’s Legislative Assembly was suspended at that time, as the ruling BJP-PDP alliance had fallen apart and the state was under President’s Rule. The order said any reference to the Legislative Assembly would mean a reference to the Governor of Jammu and Kashmir, who was a central appointee.

The Supreme Court upheld this in 2023, noting that Article 370 was intended to enhance integration between the Indian Union and Jammu and Kashmir, and not cause disintegration.

Vikas Pathak is deputy associate editor with The Indian Express and writes on national politics. He ... Read More