Home Article 370 The origin and myths about status of Article 370

The origin and myths about status of Article 370

November 24, 2021

2009

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This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. This article aims to provide facts for the general misconceptions, misunderstandings, and myths about the so-called ‘special status’ of Article 370. Also, a brief history of the now-defunct Article 370 and why and how it originated in the first place is discussed.

Table of Contents

Introduction

In August 2021, the former Chief Minister of Jammu and Kashmir (J&K) and the leader of the People’s Democratic Party (PDP) – Mehbooba Mufti urged the centre to learn a lesson from Afghanistan, where the Taliban seized power and made the US flee; and prompted the government to hold a dialogue in J&K, and thus, return its ‘special status’, which was withdrawn in 2019.

There are common misconceptions about the status of Article 370. These misconceptions are permeated or spread all over India, including in Jammu and Kashmir. Article 370 does not confer “special status” to J&K. It is a provision that only recognizes the special status conferred outside the Constitution of India. Similarly, there are numerous myths linked with Article 370. To get a better idea, we first have to know what Article 370 and this so-called special status is all about and then proceed toward the myths.

What is Article 370

Article 370 of the Indian Constitution gives autonomous status to the state of J&K. It means it has the status of an independent state. This Article is conferred in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. After the establishment of J&K, the Constituent Assembly of J&K was authorized to recommend the articles of the Indian Constitution that should be applicable to the states or to repeal Article 370 altogether.

It is noteworthy that after Article 370 became non-operational, the whole nation will follow the slogan of one nation, one flag, and one Constitution.

What is a special status

If all the provisions of a Union do not apply to that state, then the State can be termed to have a special status. The provisions can vary according to the states. Article 370 (1) of the Constitution of India grants special status to the state of Jammu and Kashmir. Whereas, Article 371 grants special status to 10 other states, which are-

Maharashtra and Gujarat (Article 371),
Nagaland (Article 371A, 13th Amendment Act, 1962),
Assam (Article 371B, 22nd Amendment Act, 1969),
Manipur (Article 371C, 27th Amendment Act, 1971),
Andhra Pradesh and Telangana (Article 371D, 32nd Amendment, 1973), substituted by Andhra Pradesh (Article 371E),
Sikkim (Article 371F, 36th Amendment Act, 1975),
Mizoram (Artic l e 371G, 53rd Amendment Act, 1986),
Arunachal Pradesh (Article 371H, 55th Amendment Act, 1986),
Goa (Article 371I, 57th Amendment, 1987),
Karnataka (Article 371J, 118th Amendment Act, 2012).

The provisions in Articles 371, 371A-H and 371J portray that the other princely states also negotiated the terms and conditions of their entry into the Union or sought special constitutional protections based on their unique needs and conditions.

Interesting fact: Article 370 and 371 were incorporated in the Constitution of India since its commencement i.e. from 26th January 1950. Although, Articles 371A-H and Article 371J, were added through amendments under Article 368 which deals with the authority of Parliament to amend the Constitution and procedure by way of addition, variation or by repealing any provision in compliance with the procedure laid down in the article.

The special status of J&K

Firstly, the special status consists of recognizing the additional legislative autonomy in J&K under lists I, II and III. There are 97 entries in List I, the last one being that of a ‘Residuary Entry’. In the case of Jammu and Kashmir, the legislative powers were given to the Parliament only in relation to the entries 1-96 of List I of the 7th Schedule to the Constitution of India. The ‘Residuary entry’ went to the state of J&K which could only enact laws for all those remaining subjects under 97 of List I, as well as those included in List II and List III (the State and the Concurrent list). In simple words, the legislative power of J&K only excluded entries 1-96 of List I which was much broader than any other State.

Secondly, the Constitution of India recognised and accepted that J&K will have its Constitution to govern local governance in the State and its relations with Parliament. The Constitution would establish a Legislature and Executive with their expansive powers. No provision of the Constitution of India as applicable to the State of J&K including Article 352, 353, 354, 355, and 356, as there were separate provisions for every future event possible in the Constitution of J&K. The Legislative and Executive powers of the Union related to J&K, as aforementioned, is also governed by the Constitution of J&K and not by the Constitution of India, as opposed to that of other States.

Thus, this was the essence of the distinctive ‘special status’ of J&K in contradiction to other states.

How is the special status of Jammu & Kashmir conferred

The special status is not conferred by the Constitution of India, much less by Article 370. The Constitution of J&K is independent of it. To understand the advancement of this status, we would need to refer to history. Let us look at the history of how and why the special status of Article 370 was granted.

History and background of the status of Article 370

The short take

Initially, the Instrument of Accession (IOA) and later the first draft of Article 370 gave the Parliament of India the authority to have legislation only in matters related to Defence, External Affairs and Communications for the state of J&K.

Since then, Article 370 has been amended at least 12 times and has been used at least 45 times for extending the provisions of the Indian Constitution to the state of J&K.

By 1954, almost the whole Constitution was extended to the state of J&K, including most of the Constitutional Amendments. By the time the law was suspended, 94 of 97 entries in the Union List were applicable to J&K; 26 out of 47 items in the Concurrent List were extended; 260 of 395 Articles were applicable to the state, along with 7 out of 12 Schedules.

Later in August 2019, Article 370 became defunct via an amendment. And with this amendment, the reference to the Constituent Assembly in Article 370(3) has been replaced by the Legislative Assembly. This now authorizes the President to rescind the provision with the agreement of the Legislative Assembly of J&K.

The long take : A detailed timeline

Pre-Independence India

The modern form of J&K has been obtained under King Ranjit Singh, who formed a Sikh federation and annexed Kashmir to the Mughal Empire and then extended the region by taking into possession Ladakh and Baltistan in the early 19th century. But the King was compelled to sign a treaty that was formalised in 1846, after the first Anglo-Sikh war. This coerced him into surrendering the region to the East India Company.

After a week, the Britishers handed over the region to a Dogra general named Gulab Singh, who was first appointed by King Ranjit Singh, under the Treaty of Amritsar. Under this agreement, Gulab Singh was permitted to rule the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and Ladakh, whereas the Britishers annexed almost all the remaining parts of the subcontinent. This is how a Dogra ruler became the ruler of a Muslim-majority region.

1947

In the year that India became independent, the matters of Jammu & Kashmir’s fate came up for discussion, again. The merger of the states after independence was to take place as per the Indian Independence Act, 1947. All the states, whether princely or not, were given an option to sign an Instrument of Accession for integrating the states democratically. The then ruler Hari Singh, who had full powers in his state, had an option to merge and sign the instrument but he persevered on handling the state independently i.e. without any intercession from India or Pakistan, thus maintaining the status quo.

However, the valley got attacked by an army of Pakistan soldiers, leaving Hari Singh with no option but to seek assistance from India. He received such assistance under a precondition that he must sign the Instrument of Accession. Meanwhile, the Dogra ruler faces challenges from Muslim leaders including Sheikh Abdullah who blamed him for treating Muslims unfairly under the Hindu law.

Thus, the Rajah, who had all the powers vested in him, negotiated for greater autonomy to J&K and a separate Constitution. The powers in the Union were limited only to foreign affairs, telecommunications, defence, and some ancillary subjects. The rest of the powers rested with J&K by virtue of conventions and agreements.

1948

The India-Pakistan attacks that started because of J&K’s accession with India, were obstructed due to harsh winters. The then Prime Minister took this opportunity to bring this matter to the United Nations and sue Pakistan for throwing the peace of the nation (India) into disarray. The UN ordered a temporary suspension of such a fight and passed a resolution calling for a referendum for the people of J&K to decide whether to become a part of India or Pakistan.

1949

In the meantime, Sheikh Abdullah was very much popular in the Muslim-majority state which is why the then Prime Minister Jawaharlal Nehru reached out to him for a deal. Sheikh Abdullah responded to the deal in affirmation considering the unquestioned power he would enjoy, along with New Delhi’s protection. This is how Article 370 was incorporated in the constitution exempting the state of J&K from the Constitution of India. This cements the terms spelt out in the Instrument of Accession signed by Maharaja Hari Singh.

1951

With the elections for the Constituent Assembly being held, Abdullah was appointed as the Prime Minister of Jammu and Kashmir. But once he was in power, he tried to focus more on his personal agenda which irked New Delhi, and thus, he was dismissed and imprisoned later in 1953. Instead of him, Ghulam Muhammad Bakshi was elected with a unanimous vote of confidence from the Constituent Assembly.

1952

In order to clarify the State’s relationship with New Delhi, an agreement was negotiated which extended Indian citizenship to the residents of the State. However, this agreement retained the original privileges enshrined by the Maharaja. But this agreement known as the Delhi Agreement had no constitutional significance.

Moreover, by an elaborate order in 1952, the Rajah of J&K had ordained the drafting of the Constitution by his own Constituent Assembly. The Assembly debated the provisions of the Constitution in full synchronicity with the Indian Government at every stage.

1953

Post the negotiations of the Delhi Agreement, most of the governance sharing issues were settled, and the Constituent Assembly of J&K approved the outcome by a resolution. The J&K Government provided all the details to the Government of India.

1954

This was a milestone in the history of the State. The Constituent Assembly of J&K gave formal approval to the State’s accession to India. The Parliament thereafter sanctioned it and as a result, the Presidential Order was issued in 1954. This Order acknowledged that the legislative powers of the Parliament, unlike that of other states, would be limited to entries 1-96 of the List I of the Seventh Schedule only. The Concurrent list along with the residuary entry 97 in List I were excluded in relation to Parliament so far as J&K was concerned.

Furthermore, this Order expanded the jurisdiction of the Center to include all subjects on the Union list of powers and gave the Governor the ultimate power to interpret the Constitution of J&K in relation to Indian laws instead of the Council of Ministers. The Order also laid down the cornerstone on the applicability of the other provisions of the Indian Constitution to J&K and gave legal recognition to the Delhi Agreement.

In the meantime, Article 35A was ushered in to empower the State legislature to make special provisions for permanent residents of the State. This included the infamous ‘special rights’ for citizens such as laws pertaining to the inheritance of property, a ban on the sale of land to outsiders, etc.

But a note must be taken that the (now deleted) Presidential Order of 1954 that added Article 35A to the Constitution of India extended Indian citizenship to permanent residents of J&K, Supreme Court’s jurisdiction to the State, and also abolished the custom duty of the State. Another important thing that has to be considered is that the Constitution of India did not have any provision for repealing or amending the J&K Constitution, and neither did the J&K Constitution allow the state to revoke this status under its amendatory powers under Section 147 of its Constitution.

In summary, since the 1954 Order, more than 40 succeeding Presidential Orders have been issued by successive governments for implementing several sections of the Constitution of India. This, in a sense, points out the erosion of the special status of J&K and supports Nehru’s often quoted comment “It will fade away with time (Ye ghiste ghiste ghis jaega)” with respect to Article 370.

Such was the independence of the J&K Constitution and the nature of its ‘special status’ enshrined and recognized in both the Constitutions.

2019

On 5th August 2019, the President of India issued a Constitution Order no. 272 in accordance with Article 370 (1) of the Indian Constitution. It stated that all the provisions of the Constitution as amended from time to time, without any changes or differences shall be made applicable to J&K. Further, as the government could not directly rely on Article 370 (3) to abrogate other articles, it sought to use the power enshrined under Article 370 (1) to amend Article 367. The next day i.e. on 6th August 2019, vide a Constitutional Order no. 273 all the powers under Article 370 were declared as non-operative and were replaced with a new paragraph where all the provisions of the Constitution of India were made applicable to J&K without any alterations. The matter of morality and legality of Article 370 has sparked several debates of intense nature. To date, this issue remains sub-judice in the Supreme Court of India.

Significance of Article 370

Article 370 has granted the State of J&K a certain amount of autonomy- an individual Constitution, a separate flag, and the liberty to enact laws. Whereas there were three matters which remained in the preserve of the Central Government, they were:

Foreign Affairs,
Defence, and
Communications, etc.

As a result of this, Jammu and Kashmir could establish their own rules related to:

Permanent residence,
Ownership of the property, and
Fundamental rights.

It could also prevent the Indians who hail from outside the state of J&K from purchasing property or settling there. The constitutional provision has often formed the basis for India’s strained relationship with Kashmir, the only region of the Muslim-majority to join India at partition.

Common misconceptions associated with Article 370

The most discussed topics also generate the most misconceptions. So is the same in the case of J&K having a separate special status and Article 370. Unfortunately, most of what people think they know about J&K and Article 370 are just unsubstantiated claims. Over the years, various myths have been propagated revolving around the Constitutional relationship between J&K and India. Here are some of the most common myths and the truth behind them.

Article 370 has been scrapped

No, this is absolutely untrue. President Ram Nath Kovind proclaimed that the Constitution (Application to Jammu and Kashmir) Order, 2019, which talks about the provisions of the Indian Constitution is applicable in the State. But, this deprives it of its autonomous status. Nonetheless, Article 370 still remains valid. In fact, the residential order exercises the powers conferred by clause (1) of Article 370 of the Constitution. So far, the Parliament of J&K had only residuary powers of legislation such as anti-terrorism laws, taxation or domestic and international travel, and communication. Currently, every law passed by the Parliament is applicable to J&K and Ladakh.

The special status is only for J&K – one cannot purchase land only in J&K

As stated above, during Independence, several other states were given special powers along with J&K. While J&K has Article 370, there is Article 371 for states like Maharashtra and Gujarat, Assam, Nagaland, Manipur, Andhra Pradesh and Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka.

Among the main provisions, the provisions for ownership of land, the Governor’s role, etc. have been included, except for the state of Goa and Andhra Pradesh. There are laws in other states as well that prevent non-domiciliary persons from owning land. For instance, the state of Himachal Pradesh under its own Himachal Pradesh Tenancy and Land Reforms Act, 1972 prevents all the non-residents from owning land there. Moreover, in the state of Karnataka, only an agriculturist can purchase agricultural land.

So, it is not as if J&K has something unique. Most of the states that have such special laws preserve local customs and cultures or prevent land alienation. They do so because they have a special history and demographic composition (for example, the tribal population) which calls for sensitive handling and assurances about the rights of the residents there. The same was the case with J&K. Thus, it is due to the state’s social and territorial situation, that a non-resident of these states cannot purchase land here.

Article 370 was termed to be temporary

When the Constitution was implemented, the framers were well aware that it would be a permanent futuristic structure because they themselves enacted it. Similarly, there was no doubt about the permanence of the Constitution of J&K.

But now a question might arise as to why Article 370 was termed ‘temporary’. Ordinarily, every provision of the Constitution is temporary until it is amended or removed. Moreover, there are a few methods prescribed under which some provisions would come to an end on their own. Article 370 prescribes one such method. But, there is nothing in the Constitution of India which states how or when the Constitution of J&K would come to an end. It is in this context that we must assess why Section 370 has been deliberately designated as a ‘temporary’.

J&K had recognized and accepted the need for an independent Constitution which meant there were two separate methods of mechanisms that governed the internal governance of the state, as well as the Centre-State legislative relations, could no longer be favoured. This would have led to a lot of conflicts and disasters. Thus, if the Constitution of J&K was enacted with the consent of everyone, then the temporary Section 370 mechanism would have to die its own death after its enactment. Also, the status did not have a specified time period because the Constitution was to be enacted by the Constitution Assembly of J&K in the near but indefinite future.

In short, Article 370 was developed solely to allow governance and regulate relations between the centre and the states in the interregnum. A careful analysis of article 370 will also confirm this.

The State of J&K cannot enact separate laws

The above claim is false. The Presidential Order only annihilates the need to pass every Indian law again in the J&K Assembly. However, the Assembly can pass bills and when such bills get an approval of the LT. Governor of the Union Territory, it will become a law. Similar to other States, the J&K Assembly can overrule a Central law by amending it, subject to approval. For instance, Puducherry, for allowing the bullfighting sport Jalikattu in its region, amended the Prevention of Cruelty to Animals Act, 1960.

There is dual citizenship for Kashmiris, and thus, they can visit Pakistan

This claim is misleading. Kashmiris is a term used for the ethnic group native to the Kashmir Valley. For years, this ethnic group of Kashmiris have migrated to different parts of the world, including Pakistan. India does not permit dual citizenship, for anyone, including Indian Kashmiris.

The ‘dual citizenship’ of the Kashmiri people is with reference to Article 370 under which they are termed to be citizens of India as well as citizens of Kashmir. A non-Kashmiri who lives in Kashmir is referred to as a citizen of India and the J&K Constitution will refer to them as ‘permanent residents’.

As far as visiting Pakistan is concerned, any Indian citizen who has a valid visa can visit the country.

Article 370 refutes a Kashmiri woman the right to own land if she marries someone outside the state

Even though Bills for denying the rights of Kashmiri women were introduced in the Assembly of J&K, none of them was passed to become an Act. In the case of State of J&K v. Susheela Sawhney (2002), an interesting question arose i.e. ‘Whether a daughter of a permanent resident of the state of Jammu and Kashmir who marries a non-permanent resident will lose her status as a permanent resident of the state of J&K for inheriting and acquiring immovable property?’ The High Court of Jammu and Kashmir held that a woman will not lose her permanent status by marrying an outsider or a person who is not a permanent resident of the state of J&K.

Pakistani boy marrying a girl belonging to J&K will get the citizenship of the State

There is a common myth that if a boy from Pakistan gets married to a girl from J&K, he will receive the citizenship of the state of J&K. But the fact is that Article 35A clearly states that a husband, who is of a non-Kashmir domicile, won’t get any rights in the State if he marries a Kashmiri woman.

Indian laws like CBI, CAG do not apply to J&K

It is a common myth that laws like CBI (Central Bureau of Investigation) and CAG (Comptroller and Auditor General) do not apply to the state of Jammu & Kashmir. But the truth is that several Indian laws including CBI and CAG have been operational in Jammu and Kashmir for decades.

The Indian Parliament cannot expand or reduce the borders of the State

It is with the assistance of the Jammu and Kashmir legislature that the Parliament of India could expand or reduce the borders of the State. The reason behind this is that the Article says that the ‘concurrence’ of the state government is compulsory for extending a central law of subjects.

Article 370 autonomy led to the alienation of Kashmiri people from India

It is oftentimes argued that Article 370 is the major factor for the spread of terrorism. Also, Article 370 is the basis of sentimental belief in a separate Kashmir, providing ground for cross-border terrorists to exploit. The bitter truth is that this increased disenchantment of the Kashmiri people is due to the erosion of Article 370, both in letter and in spirit. Article 370 provided for the extension of the law to J&K through Presidential Orders which was issued after the approval of the State Assembly. As stated in the aforementioned texts, 94 out of 97 entries in the Union List were made applicable to the state, and out of the 47 entries in the Concurrent List, 26 were expanded to the state. This severely reduced the powers of the J&K State Government. In toto, the provisions of Article 370 were used at least 45 times for extending the provisions of the Constitution to the state of J&K.

Thus, not only were the rights of the state restricted but also the spirit of the Article was violated simply because the state government approved such extensions. However, this does not mean that there must be no extensions, but there should be a limit to it. Not only this but the Constitution of India has been amended several times using Article 370. For instance, Article 249 (power of the Parliament to enact laws on State List entries) of the Constitution of India was extended to J&K without passing an Assembly resolution but on the recommendation of the Governor. Moreover, the President’s rule has also been extended using Article 370.

Many of these actions were used in the past to control and manipulate the state policies, that is, to establish ministries or impose President’s Rule.

How can Article 370 and 35A be a condition precedent to a merger if they came into force years later after J&K’s integration

The integration of J&K happened in October 1947, whereas, Article 370 and Article 35A came into force in 1952 and 1954, which is four and seven years after the integration.

The IOA (Instrument of Accession) was signed by Raja Hari Singh on 26th October 1947, but several things were left to be dealt with. These were to be settled through the negotiations in the coming years. As there were attacks by the Pakistani forces and tribal militias, Raja Hari Singh had no option but to seek assistance from India. This assistance came with a precondition that the IOA must be signed up by him. This compelled him to sign this Instrument with India, as opposed to his previous decision of handling the state independently.

After he signed the Instrument, discussions on how to implement laws and governance mechanisms had started. Meanwhile, for conserving the spirit of the IOA, Article 370 was moved in India’s Constituent Assembly in May 1949 and was passed in October 1949 to become part of the Constitution of India. Whereas, in 1950, 1 9 52 and 1954 the President passed Orders to settle various issues

As far as Article 35A is concerned, the then ruler-Raja Hari Singh had passed an Order in 1927 stating that only the residents of the state have the right to own land and the right to work in government offices. Thereafter, this Order was added to the Constitution of J&K by the state’s Constituent Assembly. The IOA had a clause that insisted that only those matters of the Constitution of India that were permitted would extend to J&K, the rights of state subjects also had to be conserved. This was all done via the Presidential Order of 1954 which inserted Article 35A.

Interesting fact: After Raja sought assistance from India, the Indian troops rushed to Srinagar which led to war. This war went on till 1949 i.e. for almost 2 years.

Development was not possible because Article 370 restricted it

When Article 370 was made non-operative, it was asserted that such a decision was taken to help the people of J&K the most. With such a step, more investment, more private industry educational institutions, more jobs and more revenue would be generated for the state. It is claimed to be one of the most absurd myths of all times created by the government.

The reason behind this is that Article 370 does not deter any government from providing or facilitating more investment and industry in J&K. Moreover, almost all the provisions of the Constitution, including the Union list and concurrent lists, were extended to the state. Most of the laws were also extended to the state of J&K. So, the Union governments could have easily undertaken any monetary measures or schemes/programmes if they wanted to in J&K.

It is often argued that such a step was not taken in the interests of the residents of J&K, but for gaining control over the land and resources of the valley for commercial exploitation. This amounts to the annihilation of the cultural identity of Kashmir.

SC/ST reservation will benefit greatly from the abrogation of Article 370

Several political leaders have claimed that since Article 370 is now abrogated, there can be reservations for SC and ST people. This is a blatant lie made by curbing the fact that there have been reservations for these communities for decades.

The J&K Reservation Act of 2004 provided reservation in direct recruitment to government services as also in promotion and professional institutions including MBBS for Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes (which includes residents of backward areas, actual line of control and weak and underprivileged class), Ex-servicemen and Physically challenged persons. 13 castes were designated as SCs under the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956, while 12 communities were notified as STs under the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1989.

RTI was not applicable in Kashmir due to its special status

J&K had a Right to Information Act since 2004, a year before the Central RTI Act came into existence. However, the State did not approve the Central legislation for a long time. In 2007, the State Act was amended on the guidelines of the Central Act.

Integration of J&K is due to any specific provision of the Constitution

Another aspect that needs to be understood is that the integration of J&K in the Union of India under Article 1 is not because of any provision of the Constitution of India, but it is due to the Instrument of Accession that such integration took place. It took place under the Indian Independence Act of 1947. It is equally integrated into the Union under the Constitution of J&K which openly recognizes and proclaims “integration”. With the J&K Constitution becoming non-operational, the solemn commitment of the J&K people to integrate with India has also been lifted.

Conclusion

The most discussed topics are the most misleading. The same applies to the state of Jammu & Kashmir. Sadly, most of what people think they know about Jammu & Kashmir and Article 370 are just unfounded claims. Many myths have been disseminated over the years about the Constitutional relationship between Jammu & Kashmir and India.

But care must be taken that misconceptions from the actual reality must be comprehended. Moreover, one must not be credulous or believe in any myths without verifying their validity and the same applies to the misconceptions related to the now-defunct Article 370.

References

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