Know all about Article 370; Why can’t it be scrapped?

When home ministry decided to delete Article 370, it did so using a Presidential Order. However, for such a provision to pass, it needs acceptance of J&K’s Constituent Assembly

Photo Courtesy: National Herald
Photo Courtesy: National Herald

Ashlin Mathew

In the 24 hours since the announcement by Home Minister Amit Shah rendering Article 370 ineffective and bifurcating Jammu and Kashmir, opinions have swung between extremes. In a country where violence is ready to burst at the seams, ill-informed views do the most damage.

And the history that we are talking about has happened in this lifetime and it’s less than a century old. The Maharaja of Jammu and Kashmir had earlier decided he didn’t want to be a part of either India or Pakistan. This accession too happened because Hari Singh faced the threat of an invasion by Pakistani tribesmen and he agreed to be a part of India in return for help against the invaders.

On October 26, 1947, however, the Maharaja of Jammu and Kashmir Hari Singh signed the Instrument of Accession, in which he agreed to accede to the Dominion of India with nine conditions. With this, the entire J&K, which included PoK, acceded to India.

In it, Singh stated that the IoA “cannot be varied by any amendment” of the Government of India Act, 1935, or the Indian Independence Act, 1947, “unless such amendment is accepted by me by an Instrument supplementary to this Instrument.” The IoA also stated that Parliament can legislate only on the matters of defence, external affairs and communications. He had also stated that “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 the Government of India under any such future constitution.”

The IoA signed by Maharaja Hari singh is not unique in the sense that at the time of independence, all the 140 princely states had signed similar IoAs. But, eventually all of them merged to form bigger states and then accepted the administration through the new Constitution.

In 1947 October, Pakistan forces attacked Kashmir and the war lasted over a year. As a result of this war, Pakistan occupied a large part of the erstwhile state of J&K and is currently known as Pakistan-Occupied Kashmir. In 1948, the then Indian government took the matter as a 'dispute' to the United Nations, where Pakistan rejected the instrument of accession and claimed its control over the territory.

In March 1948, Singh appointed an interim government in Jammu and Kashmir with Sheikh Abdullah as the Prime Minister.

In fact, in a in a letter to J&K Prime Minister Sheikh Abdullah dated May 17, 1949, Prime Minister Jawaharlal Nehru had written that the “Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly convened for the purpose”.

And, even in November 1949, the J&K ruler’s son Karan Singh (Hari Singh had abdicated in favour of his son) stated that the Constitution of India would govern the relations between J&K only to such extent as mentioned in Article 306a. This later became Article 370 and it laid down the conditions and provisions, which was included in the Constitution.

In 1950, when the Constitution was being adopted, India accepted the instrument of accession that spoke of J&K's merger into India, incumbent on special provisions, including plebiscite, which was demanded by the UN. However, India has always argued that since Pakistan has occupied a large part of the territory ceded to it under the special provision (Article 370), a free and fair plebiscite cannot be held. Moreover, India has never accepted Pakistan's control over J&K's territory and has always referred to as Pakistan Occupied Kashmir (PoK).

While it is mentioned that this Article 370 is temporary in nature, but it was stated that the J&K Constituent Assembly had a right to modify or delete or retain it. After ratifying state's accession to India in February 1954, the CA was dissolved in 1957. This meant that the state had decided to retain it and there was no ambiguity on the part of the state. In fact, even the Supreme Court in 1969 and 2018 had stated that Article 370 is not temporary.

Abrogating Article 370

When the home ministry decided to delete this provision, it did so in a convoluted manner using a Presidential Order. However, for such a provision to pass, it needs the acceptance of J&K’s Constituent Assembly, which does not exist. This means that the Article 370 cannot be deleted.

To work around this, Shah redefined the term ‘Constituent Assembly’ to mean the legislative assembly. And since the J&K State Assembly has been dissolved, the governor can decide for the people of the state. And through the governor, Parliament can enact laws on behalf of the State’s Legislative Assembly.

Then Amit Shah declared that Jammu and Kashmir will cease to exist as it is and will become two Union Territories – Jammu and Kashmir and Leh. But, even this is problematic because Article 3 of the Constitution states that before Parliament can change the definition or boundaries of a state, views of the state assembly shall be taken by the president. This hasn’t happened.

Ironically, when Shah abrogated Article 370, he has declared null and void the IoA itself and this means that India has given up claims over PoK. Now, Pakistan can declare it as its own as it is no longer disputed territory.

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