Article 370: A Short History of Kashmir’s Accession to India

This reading list explores why and how Article 370 was drafted and instituted.

The Jammu and Kashmir Redistribution Bill was introduced in the Rajya Sabha on 6 August 2019. Under this bill Jammu and Kashmir will cease to be a state. Instead, the state will be converted to two union territories, that of Ladakh and Jammu and Kashmir. Article 370 was the constitutional provision through which the special status that Kashmir has historically held under the Indian Constitution was guaranteed.  

Two months after independence, on 20 October 1947, Kashmir was attacked by a large number of armed tribesmen, forcing Hari Singh, the ruler of Kashmir to write to Governor General, Lord Mountbatten, asking India to provide military aid. Attached to this letter asking for aid was the instrument of accession to India, which was signed by Singh. Mountbatten signed the instrument on 27 October 1947. As per the document, however, only defence, external affairs and communications would be handed over to the government of India, while control over all other sectors was to be retained by ruler, under the Jammu and Kashmir Constitution Act 1939. These conditions were peculiar to Kashmir’s accession to India, unlike the 565 native states that had chosen to integrate fully with India. Article 370 was therefore introduced in the constitution to preserve the specific terms under which Kashmir had agreed to accede to India. 

In this reading list, we examine the provisions of Article 370 and why it was pivotal to Kashmir’s Instrument of Accession.  

1) The Accession of Kashmir

According to Jai Shankar Agarwala, in March 1948, Hari Singh made a proclamation by which his council of ministers were to convene a National Assembly based on adult franchise, to work out a new constitution for Jammu and Kashmir. In June 1949, he conferred all his powers as ruler to Yuvraj Karan Singh Bahadur, to be exercised by Bahadur in Singh’s absence. The terms of Kashmir’s accession was worked out in the period between October 1947 and 26 November 1949, when the Constituent Assembly was drafting the Constitution of India. Agarwala writes that “Article 370 was necessitated to accommodate the then prevailing legal status of the Jammu and Kashmir state in the body of the Constitution of India.” Agarwala points out that during the debates, N Gopalaswamy Ayyangar, one of the representatives involved in drafting the Constitution said,

 

The effect of this Article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate article 306A [now Article 370] or direct that it shall apply with such modifications and exceptions as the constituent assembly may recommend. That, sir, is briefly a description of the effect of this article, and I hope the House will carry it.

2) Article 370 and the Question of Autonomy

Article 370 was the legal provision with which Kashmir was assured of autonomy. Under Article 370, the President can, with the Constitution (Application to Jammu and Kashmir) Order 1954, decide provisions of the Indian Constitution which could be applied to Jammu and Kashmir with or without modification. But as S P Sathe writes, this has to be done in conference with authorities in Kashmir. The words “consultation” and “concurrence” that were used in Article 370 demonstrate the intent and the meticulousness of the drafters of the constitution in ensuring the retention of Kashmiri autonomy. This order has been amended from time to time to make more and more provisions of the Indian Constitution applicable to Jammu and Kashmir.

The Article provides: (I)The Union Parliament is to legislate on such matters in List I and List III of the Seventh Schedule of the Constitution as correspond with those mentioned in the Instrument of Accession signed by the king of Kashmir. The president of India can identify subjects on Lists I and III which correspond with broad subjects mentioned in the Instrument of Accession but the order of the president specifying such subjects must be made in 'consultation' with the state government. (II) The president can extend the legislative power of Parliament in respect of subjects in the union and Concurrent Lists of the Seventh Schedule not included in the Instrument of Accession by an order, which can be made only with the 'concurrence' of the state government. (III) Article I of the Constitution of India, which defines the territories of India, and article 370 itself apply to Kashmir ipso facto. All other articles of the Constitution of India may be extended to Kashmir, by an order to be issued by the president under Article 370, only in 'consultation' with the state government of Jammu and Kashmir if it pertains to matters regarding legislative power of Parliament, and with the 'concurrence' of the state government if it pertains to matters other than those regarding the legislative powers of Parliament. 

3) Legal Parallels to Kashmir

The special status for Kashmir was not an anomaly in the history of international politics. Gazala Peer and Javedur Rahman’s article points out that the constitutions of the United States and China also have provisions for special status for certain regions that are neither against the federal character, or the unitary scheme. They argue that there are measures that are similar to Article 370 that have ensured that a harmonious existence is possible within a constitutional framework. 

 A comparison with the autonomy granted by the constitution of China and the US to its units is enough to establish that Article 370 is neither against the federal character nor against the unitary scheme of the Indian Constitution. Like the respect that is accorded by Hong Kong and us to the autonomy of its units, the special status accorded to the state of Jammu and Kashmir should not only be respected, but the Indian state should also refrain from employing unconstitutional tactics which encroach upon the autonomy of the state of Jammu and Kashmir. The Indian state must work within the principles of contitutionalism in order to retain legitimacy to rule over the State. To sum up, it is important to restore the "inviolability" of Article 370

 

Read More: 

Kashmir: When Ignorance Begets Tragedy and Farce | Gautam Navlakha, 2016

What Will They Do to Kashmir Now? | K Balagopal, 2003

Kashmir: The Dirty War Prabhu Ghate, 2002

Academic Freedom and Kashmir | A G Noorani, 2001

 

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