Written by Jyotsna Iyer, a second-year undergraduate student.
What was Article 370 of the Indian constitution?
Article 370 of the Indian constitution provided a special status to the state of Jammu and Kashmir. This special status involved autonomy to the state and a clear demarcation of the matters of Jammu and Kashmir in which the central government could make decisions.
These matters included the domains of defense, finance, and foreign relations. In other domains, the state of Jammu and Kashmir reserved the right to make its own decisions and laws. The autonomy provided in this article included the state having its own constitution and state flag. Another example of this special status is that Kashmir followed the Ranbir Penal Code while the rest of the nation follows the Indian Penal Code (IPC). The Indian constitution apart from Article 1 and Article 370 itself wasn’t applicable to the state of Jammu and Kashmir as per Article 370.
How did Article 370 come into existence?
This goes back to the time of India’s independence.
In 1947, at the time of independence and partition of India and Pakistan, around 600 princely states were in a position to make a choice. Princely states were regions in British India that were ruled by indigenous rulers who signed agreements with the British Raj.
The choice was between becoming a part of either India or Pakistan, or deciding to be an independent nation. Jammu and Kashmir initially chose to be an independent nation, but following an invasion by tribesmen from Pakistan, Maharaja Hari Singh signed an instrument of accession with India. Instrument of accession refers to the agreement signed by both parties to make Jammu and Kashmir a part of India in exchange for protection against foreign attackers.
What is the significance of Article 370?
Article 370 was an integral part of the instrument of accession, and the instrument of accession is the agreement that binds Kashmir to India. Hence, Article 370 is an essential component Jammu and Kashmir’s accession to India, and of Kashmir being an Indian state. The instrument of accession is a document that is legally binding on both parties, which means that both parties have to follow the agreement. On failure to do so by either side, the typical solution is for both parties to return to their initial status.
The abrogation of Article 370 by the Indian government
In August 2019, the central government of India led by the Bharatiya Janata Party nullified article 370 of the Indian constitution. This stripped Jammu and Kashmir of its special status and allowed outsiders to acquire land in the state. This major step was taken unilaterally by the center without any consultation or concurrence by the state government or the opposition.
The nullification of Article 370 was introduced along with the separation of the state into Jammu, Kashmir and Ladakh as three separate union territories, under the direct control of the center of India.
This complete removing of autonomy was practically in violation of the instrument of accession. This move was met by extreme support as well as extreme opposition. This was also in response to the internet/ communication shutdowns and increased personnel from the Indian Armed forces posted in Kashmir during and following the abrogation.
Was the abrogation of Article 370 legitimate?
There is a wide controversy surrounding the legitimacy of the deletion of Article 370. Those in support of the move cite that the article is termed as a temporary provision in the Indian constitution. However, in contrast to this, numerous court rulings in the past years have highlighted that Article 370 was now a permanent provision of the constitution.
The Article stated that it could be deleted only by a presidential order that would follow a recommendation by the state constituent assembly, and requires its concurrence. However, the constituent assembly of Kashmir dissolved itself in 1957, without recommending the deletion of this article. Hence, it had become a permanent provision.
While the government and the supporters of the abrogation of this article view the move as one that unified Kashmir with India, many are of the view that it has only made Kashmir more distant by violating a legally binding provision.