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Article 370: Diagnosis And Prognosis of The Special Status of J & K

Written by: Slahuddin Ahmed - Currently in pre-final year of 5 yrs. LL.B. from The Law School, University of Jammu, Jammu
International law
Legal Service
  • Article 370 of the Indian Constitution, guaranteeing special status to the State of Jammu and Kashmir, carries a long and significant historical background, which is necessary to be understood to judge its importance and relevance to the present day India.

    Before March 16,1846 A.D., on which date the famous 'Treaty of Amritsar' was made between the British Government and Maharaja Gulab Singh of Jammu, the hilly areas measuring 74,471 sq.miles situated to the east of the Indus and west of the Ravi were divided into various principalities and governed by the local 'Rajas' and 'Princes'. Through the aforementioned treaty, Raja Gulab Singh was formally given the title of 'Maharaja' and thus, he became the founder of the J&K State with all its dependencies including Gilgit. Maharaja Gulab Singh consolidated his position, occupied and annexed all these areas to his State, located between the Indian empire on the one side and Afghanistan and Russia on the other side. He was succeeded to the throne by Maharaja Ranbir Singh, Maharaja Partap Singh and Maharaja Hari Singh, one after the other and the Dogra rule continued till Nov.15, 1952 when Dr. Karan Singh was sworn in as the first Sadar-i-Riyasat of the J&K State.

    On May 16, 1946 A.D., Sheikh Mohd. Abdullah , on the lines of Quit India Movement'' launched Quit Kashmir Movement'' and people of Kashmir were all out for the complete transfer of power to the people's representatives, whereas in many parts of Jammu region, the people wanted continuance of Dogra rule in the State. Maharaja Hari Singh came down heavily and to suppress the revolt. Most of the National Conference (NC) leaders, including Sher-i-Kashmir, were arrested and tried for sedition and treason. Under such state of affairs, the Maharaja announced his decisions to hold elections to Praja Sabha (State Parliament).The N.C. boycotted the polls , where as the Muslim Conference participated and won 80% Muslim seats, but the government imposed a ban on the political activities which was followed by the mass arrest of Muslim Conference leaders throughout the state.

    At the national level, the Muslim League turned down the proposal made by the British Prime Minister to transfer power to the Indians, until the demand for Pakistan was conceded. Lord Mountbatten replaced Lord Wavell as the Viceroy of India and he negotiated a settlement between Indian National Congress and Muslim League for the partition of the sub-continent and transfer of power to the two dominions – India and Pakistan. The partition plan envisaged the future disposition of the states (like J&K) with regard to the dominions, in the hands of their rulers. However, Maharaja Hari Singh wanted to maintain an independent status with cordial relations with both India and Pakistan, but India invited him to Delhi to workout the modalities whereas Pakistan accepted the offer and assured easy movement of supplies to the State through its territories such as Suchetgarh (Jammu), Uri (Kashmir), etc.

    Sheikh Mohd. Abdullah was shifted from Bhaderwah Jail to Srinagar for negotiations with the State Government on the future of the State. The talks between Maharaja Hari Singh, Sheikh Mohd. Abdullah and the Central Government were in progress, when on Oct. 22, 1947 , General Askin, Supreme Commander of the joint forces of India and Pakistan, informed the Indian Government that a group of armed tribals had attacked Kashmir. Sheikh Mohd. Abdullah was in Delhi, so Pandit Jawaharlal Nehru, the then Prime Minister of India, broke the news to him. However, the Document of Accession was finalized and Sheikh flew back to Srinagar on Oct. 23, 1947. On Oct. 26, 1947, Shri V. P. Menon, the representative of the Central Government arrived at Jammu and asked the Maharaja to sign the Document of Accession and send a letter to the Defence Committee in India.

    Compelled by the pressure built by the tribal attack, the revolt in Poonch, the National Conference leadership and the communal riots in Jammu, Maharaja Hari Singh signed the Instrument of Accession, along with the Schedule of the Instrument of Accession relating to authorizing the dominion legislature to make laws in respect of specified matters( Defence, External Affairs and Communication, etc.), in favour of India on Oct. 26, 1947 and handed over the same to Menon who returned to New Delhi on the same day. The Instrument of Accession was accepted by the Governor-General of India, Lord Mountbatten on the next day. On accession of the J&K state with Indian Union, the Governor-General ordered for immediate dispatch of forces to help the Kashmir Government to drive out the invaders from its territory. Immediately after this order, the Indian troops started to land at Srinagar Airport on Oct. 27, 1947.

    Following the signing of the Instrument of Accession, Maharaja Hari Singh on Oct. 30, 1947, charged Sheikh Mohd. Abdullah to function as the Head of the Emergency Government. So, he continued to work as such till March 5, 1948, while India sent its representation to the UN on Dec. 31, 1947 which was submitted by the Indian representative, P. P. Pillai, to the President of the Security Council on the following day. On that day, the Maharaja announced the formation of the interim Government with S. M. Abdullah as the Prime Minister. In June, 1949 Maharaja was obliged to leave the state ostensibly for reasons of health and handover power to Yuvraj Karan Singh as Regent.

    In the National Constituent Assembly, the people of J&K were represented by S. M. Abdullah, Mirza Mohd. Afsal Beg, Maulana Mohd. Syed Masoodi and Moti Ram Baigra. Finally , the Indian Constitution came into force on Jan. 26,1950 which gave to the State of Jammu and Kashmir a special status and a unique position among the Indian states.

    Article 370 (though originally Article 306-A) drafted by Gopalaswami Ayyengar in close consultation with Sheikh Mohd. Abdullah reads as follows:

    Temporary provisions with respect to the State of Jammu and Kashmir
    1. Notwithstanding anything in this Constitution,
    (a) the provisions of article 238 shall not apply 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 far 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.

    For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March. 1948;
    (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 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 proviso 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.

    In exercise of the powers conferred by Article 370 the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day of November, 1952, the said Article 370 shall be operative with the modification that for the Explanation in Cl. (1) thereof, the following explanation is substituted namely.

    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.

    It would be thus clear that while the State was deemed in Art. 1 of the Indian Constitution to be an integral part of the Indian Union, it was given a special status by means of a temporary provision, which in fact limited the powers of the Indian Union Parliament thereto three matters specified in the Instrument of Accession governing the accession of the state to the dominion of India, namely defence, external affairs and communications.
    The J&K Constituent Assembly was constituted and S. M. Abdullah addressed it on Nov. 5,1951. Things didn't end here. The State-Centre relationship talks moved further resulting into the famous Delhi Agreement on July 24, 1952 that runs as follows:

    The Delhi Agreement 1952

    i) in view of the uniform and consistent stand-taken up by the Jammu and Kashmir Constituent Assembly that sovereignty in all matters other than those specified in the Instrument of Accession continues to reside in the State, the Government of India agreed that, while the residuary powers of legislature vested in the Centre in respect of all the states other than Jammu and Kashmir, in the case of the latter they vested in the State itself;

    ii) it was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution , persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India but the State legislature was given power to make laws for conferring special rights and privileges on the 'state subjects' in view of the 'State Subject Notification' of 1927 and 1932: the State legislature was also empowered to make laws for the 'State Subjects' who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;

    iii) as the President of India commands the same respect in the State as he does in other Units of India , Article 52 to 62 of the Constitution relating to him should be applicable to the Stat . It was further agreed that the power to grant reprieve , pardons and remissions of sentences etc.; would also vest in the President of India;

    iv) the Union Government agreed that the State should have its own flag in addition to the Union flag ,but it was agreed by the State Government that the State flag would not be a rival of the Union flag; it was also recognized that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India, but for historical reasons connected with the freedom struggle in the State, the need for continuance of the State flag was recognized;

    v) there was complete agreement with regard to the position of the Sadar-i-Riyasat; though the Sadar-i-Riyasat was to be elected by the State Legislature, he had to be recognized by the President of India before his installation as such; in other Indian states the Head of the States was appointed by the President and was as such his nominee but the person to be appointed as the Head, had to be a person acceptable to the Government of that State; no person who is not acceptable to the State Government can be thrust on the State as the Head.

    The difference in the case of Kashmir lies only in the fact that Sadar-i-Riyasat will in the first place be elected by the State Legislature instead of being a nominee of the Government and the President of India. With regard to the powers and functions of the Sadar-i-Riyasat the following argument was mutually agreed upon:
    a) the Head of the State shall be a person recognized by the President of the Union on the recommendations of the Legislature of the State;
    b) he shall hold office during the pleasure of the President;
    c) he may, by writing under his hand addressed to the President, resign his office;
    d) subject to the foregoing provisions, the Head of the State shall hold office for a term of five years from the date he enters upon his office;
    e) provided that he shall , notwithstanding the expiration of his term, continue to hold the office until his successor enters upon his office.

    vi) with regard to the fundamental rights, some basic principles agreed between the parties were enunciated; it was accepted that the people of the State were to have the fundamental rights. But in the view of peculiar position in which the state was placed in particular Sheikh Abdullah's land reforms programmes , the whole chapter relating to Fundamental Rights of the Indian Constitution could not be made applicable to the State, the question which remained to be determined was whether the chapter on fundamental rights should form apart of the State Constitution or the Constitution of India as applicable to the State;

    vii) with regard to the jurisdiction of the Supreme Court of India, it was accepted that for the time being , owing to the existence of the Board of Judicial Advisers in the State , which was the highest judicial authority in the State , Supreme Court should have only appellate jurisdiction;

    viii) there was a great deal of discussion with regard to the Emergence Powers. The Government of India insisted on the application of Article 352 , empowering the President to proclaim a general emergency in the State ; the State Government argued that in the exercise of its powers over defence ( Item1 on the Union List), in the event of war or external aggression , the Government of India would have full authority to takes steps and proclaim emergency but the State delegation was, however , averse to the President exercising the power to proclaim a general emergency on account of internal disturbance.

    In order to meet the viewpoint of the State's delegation, the Government of India agreed to the modification of Article 352 in its application to Kashmir by the addition of the following words;
    but in regard to internal disturbance at the request or with the concurrence of the government of the State
    At the end of clause (1)
    Both the parties agreed that the application of Article 356, dealing with the suspension of the State Constitution and Article 360, dealing with financial emergency, was not necessary.

    Under this agreement, the J&K State was given a special status under the Indian Constitutional frame work (Article 2 of the Constitution itself). Consequently, the Constituent Assembly elected Yuvraj Karan Singh as the first Sadar -i- Riyasat on Nov. 15, 1952, thus bringing to an end the 106 years old hereditary Dogra rule in the J&K State.

    A serious opposition to S. M. Abdullah had developed in Jammu under the Praja Parishad, which launched a political movement with Shri Prem Nath Dogra as its leader. Dr. Syama Prasad Mukherjee was the President of Jan Sangh Party at the national level who commented that there was, or would soon be, two Constitutions, two flags and two Prime Ministers in one country and cannot be tolerated. The State Praja Parishad, Jan Sangh and R.S.S. joined their hands together and advocated the abolition of Article 370 of Indian Constitution.

    In Nov. 1952, the Praja Parishad leader, Shri Prem Nath Dogra and his close associate Shri Sham Lal were detained. So, the situation in Jammu grew tense within the spring of 1953 and Dr. Mukherjee supported agitation outside the State and in May 1953, he left for Jammu but was arrested by I.G.P. Kashmir at State border (Lakhanpur/Kathua) on May 11, 1953 and taken to Srinagar in custody. Unfortunately Dr. Mukherjee died in the Govt. Hospital, Srinagar on June 23, 1953. The popular slogans of the Praja Parishad agitators were – ek desh mein do vidhan; ek desh mein do nishan; ek desh mein do pradhan nahi chalen gay (in one country , two Constitutions; in one country two flags , in one country two Prime Ministers will not be tolerated).

    The unresolved issues indicated in the Delhi Agreement could not be taken care of due to dismissal of Sheikh Govt. on Aug.9, 1953 and installation of Sh. Bakshi Ghulam Mohd. as the new Prime Minister of J&K State. With the passage of time, The Constitution( Application to Jammu and Kashmir) Order, 1954 was promulgated by the President of India in consultation with the Government of J&K, regulating the constitutional status of the State; and apart from it several Central laws got extended to the J&K State and even the nomenclature of Sadar-i-Riyasat and Prime Minister were changed to Governor and Chief Minister on March 30, 1965.

    Despite of continuous efforts by various political parties, Art. 370 of the Indian Constitution could neither be made permanent nor abolished, so it continues to be as such in the Indian Constitution with J&K having its own Constitution and State flag and resulting into non-application and non-extension of Central laws without approval of the State Legislature.

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