A great debate on Article 370 of the Constitution of India, which accords Special Status to the state of Jammu and Kashmir, is raging in India’s political circles. In this Explainer, I will focus on Article 370 with a brief backgrounder on the merger of J&K with the Union of India.
I have tried to keep this piece as simple as possible.
Kashmir – from 1846 to 1947
In 1846, the Dogra royal house of Jammu ‘bought’ Kashmir from the British Government for Rs75 lakh. In fact, it was more of a gift, than a purchase, from the British to the Dogras for the latter’s invaluable help in the former’s battles against the Sikhs of Punjab. The Dogras controlled Kashmir for a hundred years, till October 1947.
The state’s population is mainly concentrated in the valley and 90 per cent of it is Muslim. Hindus and Buddhists are concentrated in Jammu and Ladakh regions respectively.
Pakistan invades J&K
In October 1947, Pakistan attacked Kashmir by dispatching first, tribal raiders, and then regular Pakistani troops. However, its evil plan was thwarted by the advancing Indian defence forces but not before the Pakistani forces could capture a thin slice of the valley in the west and a large tract of the mountainous terrain in the north.
To date, J&K remains divided at about the line where the two armies stood when the ceasefire in the First India-Pak War took effect on 31 December 1948. The ceasefire line is today called the ‘Line of Control’ (LoC). The overwhelming bulk of Kashmiris live in India with Srinagar as the state capital, while Pakistan–occupied–Kashmir (PoK) is administered from the city of Muzaffarabad. Pakistan calls this territory ‘Azad Kashmir’.
Merger with India & Article 370
When J&K was attacked by Pakistan in 1947, the kingdom’s Maharaja (Hari Singh of the Dogra House) sought the help of India, after executing an ‘Instrument of Accession’, similar to that executed by rulers of other Indian princely states.
Through this, India acquired jurisdiction over J&K with respect to the subjects of defence, external affairs, and communication. Also, like other Indian states, which survived as political units at the time of the framing of the Constitution of India, the state of Jammu and Kashmir was included as a Part B state in the First Schedule of the Constitution of India (came into effect in 1950).
Though the state was given this status, all the provisions of the Constitution applicable to Part B states were not extended to it. This strange status was due to the fact that having regard to the circumstances in which the state acceded to India, the Government of India declared that it was the people of Jammu and Kashmir, acting through their Constituent Assembly, who were to finally determine (a) the Constitution of the state, and (b) the extent of the jurisdiction of the Indian Union.
Hence, the applicability of the provisions of the Constitution of India regarding J&K was accordingly to be in the nature of an ‘interim’ arrangement. These facts form the substance of Article 370 of the Constitution of India.
The Instrument of Accession acquired legal sanctity when J&K was declared part of the territory of India (Article 1). The Constitution of India thus provided that the only Articles which would apply of their own force to J&K were Articles 1 and 370.
Did India promise referendum in J&K?
Soon after the Pakistanis attacked J&K, India lodged a strong protest with the United Nations. At the same time, Prime Minister Jawaharlal Nehru, in a live radio broadcast in 1948, promised the holding of a referendum (plebiscite) in J&K. In view of India’s promise, the UN passed some resolutions to that effect. Since then Pakistan has harped on the implementation of these UN resolutions, i.e., holding of a referendum.
In consultation with the government of J&K, the President of India made the Constitution (Application to J&K) Order, 1950, specifying the matters with respect to which the Parliament of India would be competent to make laws for J&K, relating to the three subjects of defence, external affairs, and communication. In other matters, the state of J&K enjoyed ‘autonomy’.
In June 1952, there was an agreement between the Government of India and the state of J&K at Delhi (called Delhi Agreement), as to the subjects, over which the Indian Union should have jurisdiction over the state pending the decision of the Constituent Assembly of J&K.
Early in 1954, the Constituent Assembly of J&K ratified its accession to India and also the decision arrived at by the 1952 Delhi Agreement as regards the future relationship of the state with India. The President of India, in pursuance of the above agreement, made the Constitution Order, 1954 (which came into effect in May 1954). This order extended the jurisdiction of the Indian Union to ALL Union subjects (listed in the Seventh Schedule of the Constitution of India), instead of only the three subjects of defence, external affairs, and communication.
However, the reader should note that from the beginning, the Government of India maintained that notwithstanding the accession of J&K to India by the then ruler, the state’s constitution as well as its relationship with India was to be finally determined by an elected Constituent Assembly of the state.
In November 1956, the Constituent Assembly of J&K adopted its own constitution, which came into force on 26 January 1957. J&K thus acquired the distinction of having a separate constitution for the administration of the state, in place of the provisions of Part VI of the Constitution of India which govern all the other states and UTs of the country.
In a nutshell
- Special Status granted to J&K in light of the extraordinary circumstances during which it became ‘part’ of India. This Special Status forms the core of Article 370 of the Constitution of India.
- Initially, with respect to J&K, the Government of India had jurisdiction on only three subjects: defence, communication, and foreign affairs. In short, only laws on these subjects would apply to J&K. This was in vogue till 1954.
- In 1954, the Government of India’s jurisdiction in J&K was extended to all Union subjects listed in the Seventh Schedule. The Seventh Schedule (in the Constitution of India) divides subjects for law-making into three separate lists – Union List, State List, and Concurrent List. On subjects listed in the Union List, only the Parliament of India can make laws and these would extend to all states and UTs.
- In 1956, the J&K adopted its own constitution.
- Some important provisions that separate J&K from other states are those that relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of ‘internal disturbance’ without the concurrence of J&K government; and that without the consent of the state legislature, the name and boundaries of the state cannot be altered.
- So, in a true sense, the autonomy enjoyed by J&K has eroded substantially from the time it merged with the Union of India, especially through the 1952 and 1954 agreements.
- However, the fact remains that any provision in Article 370 can be changed only with the consent of the J&K legislature.
- Article 352 under which national emergency is declared and Article 360 through which financial emergency can be declared cannot be applied in Kashmir.
- While a citizen of India has only Indian citizenship, people of J&K have two citizenships.
- Anti Defection Law is not applicable to J&K. Under anti-defection law, if an MP or MLA crosses over to another political party, she/he is disqualified by the speaker. In other words, such defecting MP or MLA can no longer remain a member of the house.
- No outsider, i.e., citizens of India other than those residing in J&K, can buy property in J&K state. In short, a non-J&K resident can not buy property in that state.
- Gift tax, Wealth tax, Urban Land Ceiling Act and intermarriage with other Indian nationals do not operate in J&K.
Can the Central Government revoke (remove) Article 370?
Yes, at least in theory. Clause 3 of Article 370 states that the “President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the state”.
In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation.
Of course, Parliament has the power to amend the Constitution of India to change this provision. But if such change does occur, it can be challenged in a court of law. Most legal experts believe that such revocation (removal) of Article 370 is easier said than done.