Immediately after the independence of Pakistan and India, Confronted with the chances of losing Kashmir to Pakistan, Maharaja Hari Singh requested help from India. Immediately, Patel’s aid V.P.Menon arrived in Srinagar and told the Maharaja that India could take action only if Kashmir acceded to India. It is widely believed that Maharaja wanted to keep Kashmir independent but reluctantly acceded to India due to the grave situation at that time as per him. Thus, on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession.
Here, the important point is that the accession was partly provisional. For example, clause 7 of this instrument read that Maharaja was NOT committed to accept the future constitution of India. Similarly, clause 8 said that nothing in the instrument affected the sovereignty of the Kashmir. The subjects that were surrendered to India included Defence, External Affairs, Communications and some ancillary subjects such as elections and jurisdiction of courts in these three matters.
Soon after the accession, India had sent its forces to Kashmir. However, later on the Kashmir issue was taken to the UN by Nehru and the issue was given a tag of an international dispute between India and Pakistan. Not only that, but India also made a promise of plebiscite in Kashmir.
By 1949, India granted a special status to Kashmir in article 306A of the draft constitution. This special status was given as per clause 7 of the Instrument of Accession. Later on, The Article 306A was enshrined as Article 370 in the constitution as a “temporary provision”.
Introduction:- Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu And Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the J&K Constituent Assembly later created the state’s constitution, it dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
Brief elaboration of text of article 370:-
Sub-clause (a) of clause(1) states that article 238, which regulated the relationship between the union & princely states shall not apply to state of J&k.
Sub-clause (b) provides that the parliament can make laws for the state of J&K on matters in the union and concurrent list only if the president with consultation of government of state, declares that subject fits the description of the matters of defence, communication and finance.
Sub-clause (c) & (d) makes it clear that only article 1 and article 370 itself, applied to the stat. other provisions can be made applicable to the state only with the agreement of the state government.
Clause (2) states that if any state government had given consent before formation of constituent assembly that concurrence/consent was subject to ratification by the Constituent Assembly of Jammu and Kashmir.
Clause (3) states that president can issue the notification to cease the operation of article 370 only and only on the recommendation of state constituent assembly.
Why 370 is temporary?
There is no doubt that article 370 was among the temporary provisions of the Indian constitution not because the state was on the verge of integration with India but because as J&K is a disputed territory and was on the agenda of the United Nations. As The position remains same and J&K was and is yet to see its final solution.
Since this disposition is yet to take place, therefore, Article 370 continues to be a temporary Article and will continue to be so unless Jammu and Kashmir reach its final settlement. And since this was a “temporary provision” in that its applicability was intended to last till the formulation and adoption of the State’s constitution. However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of Article 370. Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme court of India and The High Court Of Jammu and Kashmir, the latest of which was in April 2018.
Status Of concurrence:-
Article 370 basically “limited” the powers of Parliament to those three subjects. The President was empowered to make an order extending to Kashmir these three subjects and the federal structure in “consultation” with the State government. But its “concurrence” was required if additional subjects or other provisions of the Constitution were to be applied to Kashmir. There was one overriding proviso. That concurrence was subject to ratification by the Constituent Assembly of Jammu and Kashmir (Article 370 [2]).
Once Kashmir’s Constituent Assembly was “convened” on October 31, 1951, the State government lost all authority to accord any “concurrence” to the Union. With the Assembly’s dispersal on November 17, 1956, after adopting the Constitution of Jammu and Kashmir, vanished the only authority that alone could cede (i) more powers to the Union and (ii) accept Union institutions other than those specified in the Instrument of Accession. So, All additions to Union powers since then are unconstitutional.
In nutshell we can say actually it is constituent assembly who only has the power of concurrence and nobody else. Governor being here as an agent of president cannot give consent at all.
Can It be abrogated?
There have been many attempts for the said article’s abrogation but petitions challenging the Article 370 were dismissed by the court. Recently PIL was filed in the Supreme court in 2015 on grounds that Article 370 was added through presidential order and was never presented before parliament.
Let us take this case into account; if the Article 370 is a violation of the Article 368 and is unconstitutional then several other laws that were extended to the state through presidential orders also needs to repealed. Thus scrapping of this article make all other presidential orders from 1950 onwards, invalid. Prior to the insertion of Article 35A, the Governor and the Chief Minister of Jammu and Kashmir were addressed as the Sadr-e-Riyasat (President) and Wazir-e-Azam (Prime Minister). Its repeal must then lead back to the same arrangement. we can say that all such objections are actually without substance, & have malice intent behind it.
Now as we all know that the Indian Constitution can be amended through procedures provided under Article 368. But it has been made clear that the Article 370 can’t be amended through procedures provided in 368. The Article can be amended and abrogated through a presidential order with concurrence of the State which involves the approval of the Constituent Assembly. It is obvious that amendment of 370 is not within the domain of legislative or constituent powers of the Indian parliament. It can be done by President of India through a notification but only after concurrence of the State Constituent Assembly (which has seized to exist). But now for a moment if a new Constituent Assembly is formed that means current constitution of state along with its provisions including the one which declare the state of Jammu and Kashmir to be part of Indian Union will get dissolved. Will India take such risk? When in recent past Kosovo declared independence through a resolution of similar assembly which was recognized both by the UN Security Council and International Court of Justice.
In October 2015, Even the High Court of Jammu and Kashmir has ruled that the Article 370 cannot be “abrogated, repealed or even amended.” On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that the Article 370 has acquired a permanent status. It stated that, since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfill the mandatory provisions required for its abrogation.
Tail piece:-
Article 370 is the only constitutional link between J&K and India. And its abrogation now is next to impossible. As it can be only abrogated with the concurrence of constituent assembly which however, has ceased to exist from 1957. However if India tries to abrogate it by one way or other. There will be serious consequences for India like If it is abrogated then in legal perspective article 1 in its application to Kashmir will also get abrogated. And obviously Kashmir will drop down from schedule 1 (territory). Then the result will be that the Kashmir will become independent de jure (legally) if not de facto (actually). And Moreover these calls for abrogation by one party/N.G.O or by the other are only politically motivated calls. My Advice to these people (politicians/NGO’S) will be to stop this drama As you all know the reality that there are only two options in front of you (India) viz; either J & K’s accession to India would cease to exist Or article 370 will still be part of Indian constitution.
Author is a Law (B.A.LLB) Student of Kashmir university and can be reached at touseef680.th@gmail.com
