Before we embark upon a discourse on 370 one must be clear as to why this Article was crafted and incorporated within the Indian constitution. Maharaja Hari Singh, ruler of Jammu and Kashmir (1925-1951) did not nominate any member to the Constituent Assembly of India. He made it clear in 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 government of India under any such future constitution.” (Clause 7 the Instrument of Accession). It is obvious that the instrument of accession didn’t confer power of extending Constitution to Jammu and Kashmir upon Indian Union. Indian state was handicapped in the context constitution and law-making powers viz a viz the state. Despite nominations to the Constituent Assembly of India after 1947 the position remained same as state didn’t go for merger with the union unlike other princely states. For application of the Indian constitution to the state India needed a device and Article 370 was crafted to provide same. Since the issue was under active deliberations in UN the Article was placed along with the temporary provisions. N. Gopalaswami Ayyangar while introducing clause 306A of the Draft Constitution Bill, (Article 370 of the Indian Constitution) in the Constituent Assembly elaborated reasons for its incorporation which included “undertaking that an opportunity be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it. Supreme Court of India in its judgments made it clear that these conditions enumerated in the Constituent Assembly still persist & in absence of the state constituent assembly which stands abolished it has assumed a degree of permanence.
Despite claims to the contrary 1971 war too didn’t change this scenario. India committed itself to resolution of Kashmir dispute through bilateral talks with Pakistan through Shimla Agreement and Lahore Declaration. China remains in control of huge chunk of the state’s territory & continues to assert its standing as a party to the dispute. Armed insurgency erupted in the state in 1990 and continues till date. U N observers mission remains stationed in both parts of the state.
Did Article 370 confer special status upon Jammu and Kashmir?
It is portrayed that by inserting Article 370 within Indian constitution Indian state had conferred special status upon the state of Jammu and Kashmir. Article 370 far from conferring special status simply incorporated instrument of accession into the Indian constitution. Maharaja Hari Singh the ruler of princely state of Jammu and Kashmir despite being a sovereign ruled under British paramountcy. The paramountcy under Indian independence act lapsed on 15th august same year (1947). Jammu and Kashmir thus became absolutely a sovereign state and its ruler while signing the instrument of accession on 27th October was head of that state. Through this instrument he conferred the law-making powers relating to defense, currency foreign affairs and communications to India. So far as other affairs were concerned the law and constitution making could only be exercised with concurrence of the state of Jammu and Kashmir. The affairs regarding which it authorized Indian state to legislate were originally vested with the state of Jammu and Kashmir. Thus, there was no question of any special status being conferred upon the state by this Article.
What did Article 370 provide?
Article 370 provided that the relation of Jammu and Kashmir State with the Union of India was not to be regulated by Article 238. Article 238 pertained to Part B states i.e. the princely states which had acceded to India. Since the princely states have been assimilated within the Union, Article 238 has been abrogated now. Exclusion of Jammu & Kashmir from its purview is indicator of the fact that the state remained different from all other princely states. The Article 370 further provided that the lawmaking authority of the Union will remain confined to only those matters which are mentioned within the “Instrument of Accession” and those matters which are designated as the matters provided within the Instrument of Accession through a presidential order and other matters which he may specify with concurrence of the government of the state. The concurrence of the government of the state for the purpose of this Article had been specified within the explanations of the Article itself as Sadre Reysat acting on the advice of Council of Ministers. Any concurrence given prior to establishment of the Constituent Assembly had to be placed before such Assembly for its ratification.
Who could amend Article 370?
Indian Constitution can be amended through procedures provided under Article 368. The Constitution Application Order of 1954(now abrogated) provided that the Article 370 could not be amended through procedures provided in 368. The Article could be amended and abrogated through a presidential order with concurrence of the State which involved the approval of the Constituent Assembly. It is obvious that amendment of 370 was not within the domain of legislative or constituent powers of the Indian parliament. It could be done by President of India through a notification but only after concurrence of the State Constituent Assembly. Convening of the new Constituent Assembly pre-supposes dissolution of the Constitution of the State which included its provisions which declared the state of Jammu and Kashmir to be part of Indian Union. Given the fact that Kosovo in recent past declared independence through a resolution of similar assembly which was recognized both by the UN Security Council and International Court of Justice, India was unlikely to take such a risk.
The Recent Amendment.
The covert methods employed by successive Congress governments to change demography of Kashmir did not prove sufficient enough to transform the population ratio of the state as per desires and designs of the Bhartya Janta Party (BJP) & Rastriya Soim Sevak Sangh (RSS). Under the laws promulgated by the dynastic ruler Hari Singh outsiders were debarred from acquiring immovable property or employment in Jammu & Kashmir. When fundamental rights provided in the Indian constitution were extended to Jammu & Kashmir an exception for protection of domicile laws of the state was made in the form of Article 35A lest these rights be used to challenge these laws. Since then, Article 35A remained a barrier in the way of settling outsiders in Kashmir.
The present BJP government of India has scraped it arbitrarily after amending Article 370 of the Indian Constitution. This was done despite the fact that recommendation of the State Constituent Assembly & concurrence of an elected state government was pre-requisite for such an amendment. Indian Parliament on its own assumed the role of the Constituent Assembly of Jammu & Kashmir and its government by modifying Article 367 of the Indian Constitution and introducing new meaning to these terms. It recommended amendment to Article 370 & abrogation of constitution order of 1954 of which Article 35A was a part. Sole purpose of this constitutional change is to remove impediments in the way of settlement of outsiders in Kashmir so that changing the Muslim majority character transformed. On 18th of May, 2020 new rules have been issued for granting domicile certificates. The rules called the Jammu and Kashmir Grant of Domicile Certificates (Procedure) Rules, 2020 entitle every Indian who has stayed for a period of fifteen years or has studied for a period of seven years and has appeared in the examination of class 10th/12th in an educational institution in Jammu and Kashmir to domicile certificate. The entitlement of domicile is also conferred upon the children of a Central Government Officials, All India Service Officers, Officials of Public Sector Undertaking and Autonomous body of Central Government, Public Sector Banks, Officials of Statutory Bodies, officials of Central Universities And Recognised Research Institutes of Central Government who have served in Jammu and Kashmir for a total of ten years even if they may have never set foot in the territory. Apart from this Indian Children of persons residing in Jammu and Kashmir for a period of 15 years or of persons who have studied for a period of seven years and appeared in class 10/12 examinations too have been made eligible for domicile certificate of Jammu & Kashmir.
Jammu & Kashmir has been bifurcated into two Union territories. Bifurcation of the state and relegating it to the status of a union territory too remains in conflict with the existing legal frame work. Reorganizations of the state too needed concurrence of the state government. The process has been done in absence of the state government by president of India after getting approval from the parliament. Indian parliament cannot be a substitute for The State Constituent Assembly and legislature, and elected Sadare Reyasat (President of the state) and an elected government for such an approval. By relegating a state in to a union territory the area comes under the direct executive control of the Indian Government. Some union territories do have a legislature. The legislature like one that exists in Delhi has powers similar to the ones provided for other states in the state list except public order, (Entry 1), Policing (Entry 2) and land (Entry 18).
One can understand implications of converting a state into union territory with legislature. This status degrades position of the state to almost a municipal corporation where apart from maintaining civic amenities state has no powers. It seems government of India has decided to adopt Bhopal model for assimilation of J&K. Bhopal prior to partition was a Muslim princely state on accession to union of India it was made union territory subsequently merged in to the state of Madhya Pradesh. On the merger it was declared to be capital of the huge state. Making it capital of Madhya Pradesh led to large scale influx of outsiders to it making its original inhabitants a small minority. At present the original Bhopal state has been relegated to a ghetto, which has no role or presence in the offices of the state of which it remains capital. Apart from being reduced to a living museum depicting & moaning an old civilization & its past grandeur the original Bhopal City has no relevance in the Indian Union.
Services of those employed in a Union territory remain open to all Indians & transferrable to other states & union territories, providing government of India one more instrument of deporting the native population in the name of transfers to and recruitment from various parts of India. Thus, apart from having horrifying ramification on the demography of the state through transfer of its employees it will also create an avenue for settlement of outsiders within the state as its services will remain open for all the Indians. It is not a coincidence that abrogation of autonomy of Jammu & Kashmir and its bifurcation has been done in 2019 on centenary of similar decision taken by British in 1919 regarding Palestine.