After the British troops left India, India comprised of British Empire of India and 562 princely states including Jammu and Kashmir. The princely states were not part of British India. They had the right to decide their fate, whether to go with India or Pakistan. All princely states acceded to India, which was ultimately followed by their merger with India and hence they became part and parcel of India and there was no division of power between these states and union of India. Jammu & Kashmir did not accede either to India or to Pakistan. They demanded for an independent state with separate constitution and assembly.
The Instrument of Accession is a legal document executed by Maharajah Hari Singh, ruler of the princely state of Jammu and Kashmir, on 26 October 1947. By executing this document under the provisions of the Indian Independence Act 1947, Maharajah Hari Singh agreed to accede to the Dominion of India.
In a letter sent to Maharajah Hari Singh on 27 October 1947, the then Governor-General of India, Lord Mountbatten accepted the accession with a remark, “it is my Government’s wish that as soon as law and order have been restored in Jammu and Kashmir and her soil cleared of the invader the question of the State’s accession should be settled by a reference to the people.” Lord Mountbatten’s remark and the offer made by the Government of India to conduct a plebiscite or referendum to determine the future status of Kashmir led to a dispute between India and Pakistan regarding the legality of the accession of Jammu and Kashmir to India. India claims that the accession is unconditional and final while Pakistan maintains that the accession is fraudulent.
Both India and Pakistan demanded for Kashmir and the subject even came before UN. UN passed a resolution calling for plebiscite in Jammu and Kashmir. Since there were UN resolutions calling for plebiscite in J&K, the constituent assembly decided, till a decision was taken, a temporary constitutional provision should be introduced to give a shape to the relationship between the state and Union of India. This provision came to be known as Article 370.
Article 370 is a constitutional link between Jammu and Kashmir and Union of India. It was introduced as a temporary provision in the Indian constitution till the Constituent Assembly of J&K formed its own constitution and decided whether the said Article should be amended, abrogated or removed. Under section 3 of Article 370, it was provided that the article can be removed or changed only on the recommendations of Constituent Assembly of J&K and that is why it was called a temporary provision. Since the Constituent Assembly on July 14, 1954 decided that the Article 370, which was temporary in nature, shall remain in force and therefore it became permanent feature of the Indian Constitution. It became un-amendable after the Constituent Assembly ceased to exist after 1957.
By the instrument of accession, the power of the Dominion to make laws was restricted to the matters mentioned in the Schedule namely Defence, Foreign Affairs and Communications and a few ancillary subjects specified in the schedule. For all other matters concurrence of the State Government was essential. As a result of this, the citizens of Jammu and Kashmir are governed by state-specific laws, which come under the Constitution of Jammu and Kashmir, instead of those for the rest of India, especially where citizenship, ownership of property and some fundamental rights are concerned. This article, along with Article 5 that defines the contours of jurisdiction of Indian Parliament regarding law-making for the state, cannot be amended.
The 1952 Delhi Agreement also specified that the state should have its own flag in addition to the Union flag and they should have the same status. This arrangement was further ratified by the 1974 agreement between the then Prime Minister Indira Gandhi and the then J&K Prime Minister Sheikh Abdullah (appointed by Hari Singh). It was agreed that head of state called Sadar-i-Riyasat (or the Prime Minister) was to be elected by the state legislature. But later this was abolished, now only chief minister. The agreement opposed imposition of Article 352, empowering the President to proclaim general emergency in the state. The state legislature has a six-year term, unlike other elected bodies, which have a five-year period, including our Parliament.
Other impact of this was that, The Indian Supreme Court has no jurisdiction in J&K. Disrespecting the Tricolour and other national symbols is not a crime in the state. J&K residents enjoy dual citizenship. They will lose their J&K citizenship if they marry residents of other states. A Pakistani resident gains J&K citizenship if he marries a J&K citizen. RTE, RTI, CAG and majority of Indian laws are not applicable in the state.
The historical back ground of incorporation of article 370 is very deeply connected with the political motive and dreams of many Indian leaders including the then prime minister Jawaharlal Nehru. Nehru was very keen to incorporate this article irrespective of strong and express resistance from the then minister for states Sardar Patel and the law minister and drafting committee chairman B.R Ambedkhar. Nehru was undoubtedly idealistic and romantic about Jammu and Kashmir. It was really a negotiation. Nehru entrusted Gopalaswami Ayyangar, minister without portfolio in the first union cabinet and who was the former Diwan to Maharajah Hari Singh, to draft article 370 giving special status to Jammu and Kashmir. He argued that for a variety of reasons, unlike other princely states, Jammu and Kashmir was not yet ready for integration. Part of the territory was in the hands of rebels and enemies. Will of the people and the constitution of the state as well as sphere of union jurisdiction over the state will be determined by the instrument of accession. This article was incorporated under chapter XXI of Indian constitution, i.e., Temporary, Transitional and Special provisions, hoping that Jammu and Kashmir would one day integrate like other states of union.
Nehru was very keen to incorporate Article 370 irrespective of strong and express resistance from the then minister for states Sardar Patel and the law minister and drafting committee chairman B.R Ambedkhar.
Now the question is whether Article 370 is still intact in its original form? One of the biggest myths is the belief that the “autonomy” as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
The last and important question and present matter of debate, can Article 370 be abrogated? Clause 3 of Article 370 is clear. 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 to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended. J&K Constitution was framed under the authority of the Article 370 and Instrument of Accession. If the Article 370 goes then the effect of section 3 of JK Constitution under which JK is part of India will also go. Now suppose this argument is countered by Union of India saying even if there is no section 3 of J&K constitution, the State is still part of India because of the Instrument of Accession. But in that case Union of India will face serious problems because governor general of India Lord Mountbatten while accepting Instrument of Accession pledged as soon as the situation after the raid from the Pakistan side (in 1947) becomes normal, people have the right to express their wishes, whether or not to accept the accession and in that case J&K people will have legitimate right for plebiscite.
Hence Article 370 is more likely a contract having perpetual succession between union of India and state of Jammu and Kashmir. The amending provision of constitution of India under article 368 therefore having no significance regarding Article 370. Any attempt to amend or abrogate Article 370 will prejudice the very nature of accession of Jammu and Kashmir to India and the state will have absolute authority to decide the fate regarding whether they have to continue accession with union of India or claim for independent state. The debate and attempts of abrogating article 370 by the newly elected NDA govt will definitely prejudice the secular aspect of India and automatically entrust the people of the state the right for plebiscite.