UNDERSTANDING ARTICLE 370
MEHNAZ RATHER
Article 370 has been described as a tunnel through which the constitution of India is applied to J&K. It deals with the constitutional relationship of Jammu and Kashmir with Union Government. Under Part 21 of the constitution of India, which deals with “Temporary ,Transitional and special provision, “the state of Jammu and Kashmir has been accorded special status under Article 370 and other provision of the constitution can apply to J&K, “subject to such exceptions and modification as the President may, by order, specify, with the concurrence of state government and endorsement of Jammu and Kashmir constituent assembly.
LEGAL STATUS OF JAMMU AND KASHMIR BEFORE 1947
Before incorporation of Article 370 in Indian constitution, the state, from legal point of view, was the native state of India whose connection with the Crown was determined by the same relationship as with those of other states. Accordingly to this relationship all the native states including J&K “were the vassal states of the British crown in the form of dependent territory connected with the British Empire through the relationship of paramountcy.” The Indian native states were not recognized as states under international law and none of them, therefore, ever had international status. The native state’s during pre-independence era were nothing but vassal states ,the rulers of the states were loyal and subordinate to their master- the British but within their own territorial jurisdiction they were autocrats and despot like monarchs who ruthlessly ruled over their subjects. The Indian independence Act 1947 provided that the rulers of the native states were free to accede to any of the new domain- India and Pakistan.
INSTRUMENT OF ACCESSION
Raja Hari Singh had initially decided to remain independent but an invasion attempt from the tribesmen from across the border left him no other alternative but to seek help from India. Hari Singh signed the Instrument of Accession on oct.26 1947 and Governor General, Lord Mountbatten accepted it on oct.27 1947 with a remark, ‘’It is my government wish that the soon law and order have been restored in Jammu & Kashmir and her soil cleared of the invaders the question of the state’s accession should be settled by a reference to the people’’
The schedule appended to the instrument of accession gave parliament the power to legislate in respect of J&K only on defence , External affairs and communications. Raja Hari Singh, the then rural of J&K explicitly mentioned that the terms of ‘’ My instrument of accession cannot be varied by any amendment of the Act or of Indian independence Act unless such amendment Is accepted by me by an instrument supplementary to this instrument/ clause 7 of instrument of accession said ‘’nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with government of India under any such future constitution.’’
Article 370 could be interpreted as temporary in the sense that the J&K constituent assembly had a right to modify / delete/ retain it; it decided to retain it.
Another interpretation was that accession was temporary until a Plebiscite. The union government in a written reply in parliament last year, said there is no provision to remove the said Article from the Indian constitution. The Supreme Court in April 2018 said that despite the head note using the word ‘’Temporary, Article 370 is not temporary. In Sampat Prakash [1969] the Supreme refuses to accept Article 370 as temporary. A five Judge bench said ‘’Article 370 has never ceased to be operative ‘’. Thus it has acquired permanent shape under the constitution of India.
However, Article 370m clause (3) permits deletion by presidential order such an order however is to be preceded by the concurrence of J&K’s constituent assembly since such an assembly was dissolved on Jan 26, 1957 and now it can’t be deleted until the same assembly settles in.
The writer is a student of Law at Kashmir University and can be mailed at Email. [email protected]
