In 1947 when Pakistan attacked Jammu and Kashmir( J &k) , then out of fear the
ruler of the princely state J&K " Maharaja Hari Singh" asked the Indian
government for assistance but the Indian government asked the king that on what
grounds should we assist you since J&K is not a part of India, therefore an
instrument of accession was signed between the Indian government and the king on
26th October, 1947 and to this Jammu and Kashmir became the integral part of
Sardar Vallabh bhai Patel was of the view that we (India) should go for a
war with Pakistan but our president Mr. Jawaharlal Nehru was not in the favour
of any kind of violence as it will only lead to blood shredding therefore he
said to Muhammad Ali Jinnah, the founder of Pakistan " that as we (Indian
government) have signed the instrument of accession with Maharaja Hari Singh
which means J&K is an integral part of India, but on to this Muhammad Ali jinnah
said that this instrument was signed under pressure and force therefore it is
not valid hence we (Pakistan) do not accept this.
To this statement of Muhammad
Ali Jinnah, Jawaharlal Nehru took this matter to the United nations and this is
how the UN Charter of 1947 came into picture. United Nations declared the state
of J&K a disputed place, moreover it gave the least value to the instrument
being signed between the Indian government and the king of J&K.
The UN introduced the concept of "Plebiscite"
here under the system of
plebiscite the people of J&K are asked through the system of voting that whether
they wanted to live under the governance of India or Pakistan and hence the
decision would be final and would be binding on both the countries but both the
countries were not ready to move their army from the areas of J&K which are
being occupied by them respectively.
Between this dispute a new leader of J&K
emerged and his name was "Sheikh Abdullah" who was previously representing many
of the political issues of J&K. Here the Indian government discussed all the
provisions of the instrument of accession with Sheikh Abdullah and this meeting
was known as "Delhi Agreement". In order to incorporate the instrument of
accession in the constitution of India, article 370 was introduced.
Introduction to Article 370
Article 370 of the Indian constitution is defined under part XXI. This part of
the constitution defines the temporary, transitional and special provisions to
12 states of India and J&K is amongst those 12 states which is covered under
Article 370 is divided into 3 parts which are:
- Powers of parliament
- Laws applicable
- Can article 370 cease to exist?
The first part " powers of the parliament"
says that the parliament do have the
power to make laws on the subject matters listed under the concurrent and the
central list for every state but article 370 says that the power of parliament
is restricted upto the state of J&K moreover the parliament is allowed to make
the laws for J&K only on the subject matters which were decided at the time of
signing the instrument of accession, and the matters were:
- External affairs
these above mentioned 3 subject matters cover 31 areas of the central and the
concurrent list and parliament can make laws on these 31 matters for J&K but if
parliament want to make laws other than these 31 areas they have to take
permission from the State government of J&K moreover if the parliament make laws
in the general course of action they do start implying in every state but in the
case of J&K the laws so made would have to be passed by parliament first then
the State government and then further the laws undergo the process of
ratification and then is the State Assembly ratifies the laws then they would be
applicable in J&K, hence the restrictions over the powers of the parliament and
the extra process of ratification is being imposed by Article 370.
Part II of the article (laws applicable)
This part says that Article 1 and 370 of the Indian constitution will be
applicable in the state of J&K besides this all those provisions which are
mentioned by the president in his order of 1954 will also be applicable, this
order is being revised timely i.e time to time.
Part III of Article 370 (can article 370 cease to exist?)
The above mentioned 3rd part of the article raises a question that whether the
application of the article can be stopped or can it be waived off.
The answer to the above mentioned question is given in the article's clause
3[370(3)] which says that if the Constituent Assembly of J&K says that article
370 shall be removed or abrogated the only it will cease to exist moreover after
this the President shall himself through a public notification says that article
370 shall be removed, only then the article shall be removed but if it has being
this much easy then till now it would be repealed.
Written By: Anirudh Gupta