We look into the history of the now-defunct Article 370 and 35 A and what lead to its inception in the first place to shed light on modern faultlines.
The erstwhile Indian state of Jammu & Kashmir (J&K), whose political and constitutional status was dramatically overhauled two years ago on this day, continues to live in the shadows of guns and is rarely free of controversy.
Critics argue that the abrogation of the Article 370 and 35A did little to address deep-rooted problems in Kashmir’s polity and its history with violence. The government, however, insists that it’s a changing Kashmir where “stone-pelting Fridays” have become a thing of the past.
This is why the modification of a constitutional provision that granted the erstwhile state a special status — a greater degree of autonomy than that enjoyed by most other Indian states — has been hotly contested since the state agreed to accede to India.
We look into the history of the now-defunct constitutional provisions and what lead to its inception in the first place to shed light on modern faultlines.
The short take
At the inception, the Instrument of Accession and later the first draft of Article 370 gave Indian Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications.
Since then, India amended Article 370 at least 12 times — by Congress’ own admission — and has used it at least 45 times to extend provisions of the Indian Constitution to J&K.
By 1954, almost the entire Constitution was extended to J&K including most Constitutional amendments. By the time the law was shelved, 94 of 97 entries in the Union List were applicable to J&K; 26 out of 47 items of the Concurrent List had been extended.; 260 of 395 Articles were applicable to the state, besides 7 of 12 Schedules.
Then on 6 August 2019, the law was finally scrapped.
The Long Take: A detailed timeline
The state of Jammu and Kashmir acquired its modern shape under King Ranjit Singh, who established a Sikh confederation and annexed Kashmir from the Mughal empire and then expanded the region by capturing Ladakh and Baltistan in the early 19th century.
But Singh was forced to sign a treaty which was formalised in 1846 after first Anglo-Sikh war. It forced him to hand over the Valley to East India Company.
A week later, the British sold the region to Gulab Singh, a Dogra general first appointed by Ranjit Singh, under the Treaty of Amritsar. Under this arrangement, the Dogra king was allowed to rule over the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and Ladakh while the British annexed almost all of the remaining parts of the subcontinent. And thus a Dogra ruler came to hold the command of a Muslim majority region.
In the year that India acquired its Independence, the matter of J&K’s fate comes up for discussion again. But the then ruler Hari Singh insists on maintaining the status quo by running a state independent of both India and Pakistan. However, a Pakistani army of soldiers and tribesmen launches an attack to annex the state that leaves Hari Singh no choice but to seek India’s help, which he gets but on the condition that he signs the Instrument of Accession of J&K. At the same time, the Dogra rule faces challenges from Muslim leaders including Sheikh Abdullah, who allege that Muslims were treated unfairly under the Hindu rule.
The India-Pakistan offensive that started after Jammu and Kashmir’s accession gets stalled due to the harsh winters and India’s then Prime Minister uses the opportunity to take the matter to United Nations and sue Pakistan for disrupting the peace. The UN orders ceasefire and passes a resolution seeking a plebiscite for the people of Jammu and Kashmir to decide whether to become part of India or Pakistan.
- 1949: A note on institution of Article 370
Meanwhile, Abdullah enjoyed enough popularity in the Muslim-majority state for Nehru to reach out to him for a deal. According to a Firstpost article, from Abdullah’s perspective, Pakistan appeared to be a dead end. In India, though, Kashmir’s political patriarch saw the prospect of a deal where he could wield unquestioned power while enjoying New Delhi’s protection. Thus, Article 370 was incorporated in the Indian Constitution, exempting the state of Jammu and Kashmir from the Constitution of India. This cements the terms spelt out in the Instrument of Accession signed by maharaja Hari Singh.
Elections for the constituent Assembly of the state are held, which India says rules out the need for a referendum. Abdullah is appointed Prime Minister of Jammu and Kashmir. However, once in power, he tries to press on with a separate agenda that displeases New Delhi. As a result, he is dismissed in 1953 and imprisoned.
His one-time aide, Ghulam Muhammad Bakshi is elected in his stead with a unanimous vote of confidence from the Constituent Assembly, albeit many of its leaders were released from prison on that very day by the Centre.
In order to elicit more clarity on the state’s relation with New Delhi, an agreement was negotiated that extended Indian citizenship to residents of the state but leaves the original privileges for residents, enshrined by the maharaja, intact. However, this agreement called the Delhi Agreement, has no constitutional standing.
1954: A Landmark in State’s history
Jammu and Kashmir Constituent Assembly ratifies the State’s accession to India. Following this, the central government passes a presidential order that in effect gutted Article 370.
The order of 1954 expands the Centre’s jurisdiction to all subjects in the Union list of powers and gives the Governor, rather than the council of ministers, the final authority to interpret the Constitution of Jammu and Kasmir with respect to Indian laws. It also places a final footing on the applicability of the other provisions of the Indian Constitution to J&K and accords legal sanctity to Delhi Agreement.
However, Article 35 A is also introduced at the same time to enable the State legislature to make special provisions for the permanent residents of the State which included the notorious ‘special rights’ for citizens such as property inheritance laws, ban on the sale of lands to outsiders etc.
But it is also important to note that the (now scrapped) presidential order of 1954 that added Article 35A to the Constitution also extended Indian citizenship to permanent residents of J&K, Supreme Court’s jurisdiction to the state, and abolished the state’s customs duties.
In Conclusion, after the 1954 order, more than 40 subsequent presidential orders have been issued by successive governments to implement various sections of the Indian Constitution in the state. That, in a way, points to the erosion of the special status of Jammu and Kashmir and ratifieds Nehru’s oft-quoted comment “It will fade away with time (Ye ghiste ghiste ghis jaega)” with respect to Article 370.
Through Constitution Order No. 273 dated August 6, 2019, “Declaration under Article 370(3) of the Constitution”, (or the existing Article 370) is substituted by a new paragraph whereby all provisions of the Constitution of India, as amended from time to time, without any modifications and exceptions, have been made applicable to Jammu and Kashmir.
This action of the President amounts to the virtual abrogation of Article 370 in its essence and has since raised heated debates on its morality and legality. The matter remains sub-judice in the Supreme Court of India.