article 370

THINK INDIA

LAW: Fulcrum of Change

Special Status of Jammu & Kashmir

10/1/2012

Submitted by:

A.S.KAUSHIK BABU, B.Com. /L.L.B., 1st year

SWAPNANEEL RAY(co-author), B.B.A. /L.L.B., 1st year

Mobile-no: +919163747602

Gujarat National Law University,

Gandhinagar,

Gujarat- 328028.

LAW: FULCRUM OF CHANGE?

Abstract

“Article 370 Special status of J & K”

This paper voluntarily presented focuses entirely on the history and evolution of Article 370 and

its impact on India and the people of J & K. Ever since J & K was infiltrated by the Pakistani

commandos, India has seen a rampant increase in terrorist activity in the province of J & K as

well as other states as a result of which there was need for a special Article that consulted this

problem. Consequently, The Article 370 of the Indian Constitution was brought into action

which grants a special status to the Indian state of Jammu and Kashmir. During the early stages

of this agitation, there was persistent support from Jan Sangh (which is known as BJP today) for

the special status for J & K.

This paper also looks at the situation before when J & K was still not a part of independent India.

Eventually, by the instrument of Accession, dated 27 th October, 1947, signed by the Maharaja on

behalf of the J & K state, the state finally acceded to India. This special relationship of J & K

found its reflection in the Article 370 of the Constitution of India. By virtue of the Article, the

Indian parliament can especially legislate for J & K on matters other than those mentioned in the

instrument, but only after obtaining the concurrence of the State of J & K. Thus, J & K has had a

special status ever since, unlike the other States of India where the parliament can legislate on

subjects mentioned in the Union and Concurrent list.

Moreover, the paper also looks at the end results of this Special Status of J & K and how this

Article has been able to erode the infiltrations and reach the goal of providing such status.

The research methodology of the paper will be based on the secondary sources like books written

on this Article and various other Articles written by eminent jurists and also various other

sources related to the problems of the population of J &K, and their inflictions on India as a

whole. Essential references will also be drawn from newspaper articles, political magazines and

other literary sources.

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Table of Contents

Introduction………………………………………………………………………………..3

History Background………….………………………………………………….…….......3

Impact of Article 370……………………………………………….…………………......7

Contemporary

Issues………………………………………………………………………………..……10

Conclusion…………………………………………………………………….,...………10

Bibliography…………………………………………………………………….……….12

..

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Introduction

When there was partition between India and Pakistan1 this was a time when there was political

unrest and lot of issues because of the despotic ruler ignoring the religious views of public and

also denied the fundamental right of the public. The people over there were hunger of political

supremacy which can be understood through the communal riots. Because of division of the sub-

continent on religious differences, their goal of achieving independence became tougher. Finally

the State of Jammu and Kashmir was acceded to the Dominion by the then ruler Maharaja Hari

Singh on 26th Oct, 1947 in the manner prescribed by the Government India Act 1935.2 This

accession created controversy between Pakistan and India. This was starting period of revolt

between the two states. Jammu and others states accepted the Constitution of India whereas

Kashmir did not integrate with India but remained as an anomalous autonomy, the Kashmir State

made up an altogether different Constitution enacted by its own Constituent Assembly. The State

is an autonomous unit of India Union and thus but because of accession surrender of powers to

India, some provisions of India Constitution are made applicable upon consultation with State

government.3 After this there lot of difficulty in maintaining peace and prosperity, in spite of this

the State of Jammu & Kashmir was undergoing bad crisis, so they required some structural

administrative setup to restore the normal life. So that is the reason for providing Special status

which gives them special provisions to maintain normal life through peace, harmony and

prosperity. After this they were lot of conflict because of the Pakistani Militants and many

terrorist activities.

Historical Background

Before 1846 Jammu, Kashmir and Ladakh were under different rulers. Kashmir had it final ruler

Ranjit Singh of Punjabin 1819 who defeated the pathan ruler in wrestling and for nearly 25

years was ruled by the governors appointed by him. Jammu had feel in to the hands of Gulab

Singh which was conferred by raja Ranjit Singh with some other areas to Dhyan Singh and

Suchet Singh since they were killed subsequently the jagirs fell in the hands of Gulab Singh. 1 August 14, 1947.2 A S Anand, The Constitution of Jammu & Kashmir, pg. 1-2, 5th ed., Universal Law Publishing Co. PVT. LTD., Delhi.3 id., pg-2

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This was the first king to rule the entire province of Jammu. Gulab with the force of 700 and

with the help Zorawar Singh captured Ladakh. Thus by annexing Skaru and Baltistan, Gulab

Singh encircled Kashmir.4

In 1845, war broke between the Sikhs and the British at Sobroan. The Sikh nobles asked

Gulab Singh to help and lead them. But Gulab Singh was not interested in helping the Sikhs

since he excepting the earning the British confidence by remaining neutral. So his goal of

earning their was successful, when the Sikhs lost the battle the British forced them to pay the war

indemnity. The british were aware that Sikhs will not be able to pay such huge war indemnity so

the British decided to hand over the territory to Gulab Singh over paying the war indemnity.

Gulab Singh took over the territory by paying the requisite amount under the Treaty of Amristar.

The Treaty of Amristar gave Gulab Singh the title deed to Kashmir but actual possession had yet

to be taken because the Singh Governor was not ready to surrender so he had to wage war for

full control which was supported by East India Company, Gulab Singh was able to get the

possession of the province of Kashmir on November 9, 1846.5

Gulab Singh was focused on building up the infrastructure of Jammu and Kashmir and

establishing an Administrative Setup through which he rule justly. “The Maharaja himself could

be approached by any of his subjects who sought justice in his hands.”6 This clearly justifies he

was a noble man with noble deeds. Since he been warrior himself he was good at establishing

defense buildings and warrior setups. In spite of being uneducated but was very able to rule and

judge people. He divided the State in to three provinces and each under the head of an executive

Officer and was again subdivided under the head of District Officer, in this way he maintained a

structured ruling for the benefit of common people.7Gulab Singh died on 25th of Sawan, 1914

(A.D. 1858), the same year as witnessed the horrors of the Indian Mutiny. He was succeeded by

his son Ranbir Singh.

Ranbir Singh was the third son of the Maharaja Gulab Singh and he succeeded. He was a person

of Versatile genius, he felt into lot of improvement of the existent administrative setup made by

4 Imperial Gazetter of India, 1908, Vol. XV, p. 95.5 Lawrence to Sir Fedrick Currie, dated 12th November, 1846; as reproduced in Edwardes and Merivale, Life of Sir Henry Lawrence, 3rd edition, London, 1872, Vol. II, p. 77.6 K.G., Kaul, Kashmir through the ages, p. 112.7 Notes on Jammu and Kashmir, National Archieves, Foreign, Political A, July 1863, No. 73-75.

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his father. He also brought the court system almost 25 courts among them 14 were wazarat

courts. He also established the The State Civil Procedure Code published in 1873 A.D.8

Although Maharaja Ranbir Singh tried to improve the administrative of justice, the system was

characterized by much abuse.In 1855 A.D. ranbir Singh fell ill and died an dwas succeeded by

his on Raja Pratap Singh.

Raja Pratap Singh never entertained the British, since his father never yielded to British because

of his strong resolution but since he is dead the British advantage of this point. He improved the

Civil procedure Code through the council of Ministers. In 1888, the British government asked

the Maharaja to make certain reforms in the administration. In the same year, the Maharaja sent

asealed letter to the Viceroy in which he proposed a new constitution for the State.9 The

Maharaja proposed a new council of which he was a President and his brother as Vice President

and Prime Minister. He also established the High Court having general superintendence and

control over all other courts into the State.

Then people started uprisings against the new encroachment of new entrants in to the

administrative setup because of their higher education. The Slogan State for the State’s

peoplecame to be heard everywhere but Maharaja paid very little attention to this. Neither the

Maharaja nor his councilors then imagined that this demand of the people would one day lead to

a strong agitation which would have to be faced by his successor and which would cost him his

throne. Sir Pratap Singh in 1925, intestate. He was succeeded by his nephew Hari Singh, the only

son of his brother Amar Singh.

The previous agitation grew stronger as the time went by. The agitation was so strong that the

Maharaja had to issue an order on 31st January, 1927 which provided that the Mulkis would be

preffered to be outsiders in case of employment in Government services. On 28 th June, 1938, a

meeting of the working Committee of the Muslim Conference was held in which Sheikh

Mohammad Abdullah moved a resolution suggesting to change the name of the Conference to

‘National Conference’ and to amend the Constitution so as to throw its doors open to non-

Muslims. The resolution was passed by a majority of 17 against 3 votes.10

8 The Jammu and Kashmir Administrative Report, 1911.9 The proposed new constitution of Jammu and Kashmir Council, as published in the Parliamentary papers relating to Kashmir, 1890, p. 19.10 All India State People’s Conference, Kashmir, Bombay, 1939.

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This mass meeting of the people places on record its complete repudiation of the present system

of Irresponsible Government and wishes to express its faith in the establishment of complete

Responsible Government, which alone can cure the ills of the people.11 These meetings alarmed

the Maharaja. He realized that the people of his State were now united and that he could no

longer suppress the rising public feeling. He thought it best to give some further constitutional

guarantees, and also Sheikh Abdullah the National Conference leader in his speeches delivered

that First that the treaty of Amritsar between the British and Raja Gulab Singh was a sale deed

unacceptable to the people of Kashmir and should be abrogated. Second that Maharaja Hari

Singh should quit the valley bag and baggage and leave Kashmirie alone to decide their future by

themselves. And with this initiated the Quit Kashmir movement of the National Conference in

jammu and Kashmir12, this was on the eve of Indian independence and his government was

ruthlessly firm because when Nehru the then P.M. decided to visit Kashmir and he was banned

from visiting the Jammu and Kashmir and also was arrested in an attempt to reach Kashmir.

There were huge differences between the National Conference and the Muslim League who

supported the Maharaja Government. And lot controversy was going and the Government was

under threat and on the verge of transferring power either to the Pakistan or to the India, he sent a

standstill agreement to both the Pakistan and India both gave a convincing reply and then as

India as taken utmost importance to this topic of Kashmir, Pakistan took it as advantage and

started pressuring Maharaja to transfer Kashmir to Pakistan during this verge there was Poonch

revolt going on which was caused by the Pakistani infiltrations demanding to join Pakistan

because of such unethical act Maharaja decided to transfer to India.

Sri Ayyangar said that all the other states have been integrated by federal republic which

is not in the case of Kashmir and also that particular state is not ripe for this kind of integration

due to special conditions prevailing in Kashmir13 and also there was an ongoing war and part of

State is still in the hands of the enemies, and the Government had committed themselves to the

people of Kashmir in certain respects, because of which he brought a concept of Article 370 and

by this the situation of Jammu and Kashmir reached a stale mate situation in United Nations and

accordingly Article 370 was discussed and adopted. The future relations of Kashmir were

11 All India State People’s Conference, Kashmir, Bombay, 1939, p.22.12 P.N., Bazaz, History of struggle for freedom in Kashmir, New Delhi, 1954, p. 256.13 Constitution Assembly Debates (India), Vol. X, No. 10, p. 422.

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decided by this Article which is clearly based on Instrument of Accession. Article 238 will not

apply to Kashmir, it was under effect from November 25, 1949.

Impact of Article 370

The actual impact of the Article 370 of the Constitution of India has been more internal than

external. But it has affected politics in a diabolic manner. Although most politicians and people

would like to believe and stay assured that Article 370 does not still bias the state of Jammu and

Kashmir and put it on a special pedestal, it is far from the truth. Jammu and Kashmir simply have

still not come away from the special status it obtained on the 14th of May, 1954, via the

Constitution of Jammu and Kashmir.

Article 1, of the Constitution of Jammu and Kashmir, states that the State of Jammu and Kashmir

is and shall be an integral part of the Union of India. Article 5 states that the executive and

legislative power of the State does not extend to matters those with respect to which Parliament

has power to make laws for the State under the provisions of the Constitution of India. These

provisions cannot be amended. The constitution was adopted and enacted on 17 November 1956.

Under the special powers of Article 370, the State of Jammu and Kashmir have been

uncooperative about accepting the Indian Penal Code, Prevention of Corruption Act in 1988 to

name a few, and several other acts and bills passed by the Indian Parliament.

The Jammu and Kashmir State Governments have also declined applicability of different new

articles of the Indian Constitution since the last six decades, or have only adopted them in

drastically modified forms.

The Preamble of the Indian Constitution proclaims the Union of India as ‘Secular’. However, the

corresponding Preamble of the Constitution of the State of Jammu and Kashmir does not avow

that the State is ‘Secular’.

There has also been a constant notion that Article 370 humbly protects Muslim interests and

therefore ought not to be rescinded. However, the hard truth is that the persistence of the Article

370 for the State of Jammu and Kashmir does not profit the minority Muslims in India. Instead,

the Muslim majority of Jammu and Kashmir continues to live in isolation from the rest of the

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nation and hence gets naturally alienated from most of the economic, cultural and political

developments occurring all over the nation.

There is also a persisting belief that Article 370 prevents anyone not belonging from Jammu and

Kashmir from acquiring immovable property within the boundaries of the State. However, it is

quite unsettling that no such prohibition actually exists in the Article 370 itself.

Truth is, Article 370 has been at the eye of the storm of heated debates ever since it came into

full effect from January 26, 1950. While a major section of the Indian political parties demanded

its annulment, others have fervently opposed this demand. In 1999, Farooq Abdullah, the then

Chief Minister of the State of Jammu and Kashmir even threatened to revolt if the Article were

invalidated.

The first and foremost impact, that came directly after Jammu and Kashmir came under the

administrative control of the Government of India after the country’s 15-month war that Pakistan

started in 1947 to seize sovereignty over that State, was that it got butchered into 2 other parts

and served on Pakistan’s and the Republic of China’s plate.

Legally and constitutionally the State comprises the territory which, immediately before the

commencement of the Constitution of India, constituted what was formerly the princely State of

Jammu & Kashmir. However, after the 1947 war, Pakistan came to occupy 1, 15,669 sq. kms. of

the State out of which it gave China 37,555 sq. kms. through the 1963 Sino-Pakistan Border

Agreement. As a result, the control of the Government of India extends to 1, 06,567 sq. kms. or

48% out of the State’s total area of 2,22,236 sq. kms.

Beginning with the words ‘Notwithstanding anything in this Constitution’ before the hard text,

the prelude indicates that Article 370 applies without having to depend on any other provision of

the Constitution of India for its enforceability. This prelude has been extremely rarely used in the

rest of the Indian Constitution.

The following are some of the Acts n Provisions not applicable to J&K:

The Delhi Special Police Establishment Act, 1946

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The legal powers of investigation of Central Bureau of Investigation (CBI) are derived from this

Act. The CBI is India’s foremost criminal investigation agency. CBI is, by a Constitution order

under Article 370, excluded from Parliament’s purview in respect of Jammu & Kashmir. Hence

the DSPE Act is not applied to that State.

Indian Penal Code 1860.

This is among the oldest Indian statutes and the most comprehensive criminal law in the country.

The Prevention of Corruption Act, 1988

It is an Act Politicians and Government employees are being increasingly charged with.

The Religious Institutions (Prevention of Misuse) Act, 1988

This law prohibits religious institutions from allowing their premises for the promotion of

political activity and for storing of arms and ammunition.

The Unlawful Activities (Prevention) Act, 1967

It empowers the Central Government to ban any combination or body of individuals that act in a

manner in order to bring about cession or secession of Indian Territory or to disrupt the

sovereignty and territorial integrity of India. Any activity under section 153-A or Section 153-B

of the Indian Penal Code is also defined as unlawful activity under this law. Section 153-A refers

to ‘Promoting enmity between different groups on grounds of religion, race, place of birth,

residence, language, etc. and doing acts prejudicial to maintenance of harmony’ while section

153-B refers to ‘Imputations, assertions prejudicial to national integration.’ However, activities

in Jammu & Kashmir falling under these two Sections are excluded from purview of this Act

because the Indian Penal Code is not applicable to that State.

There are a lot of such legal instances, keep aside the the cultural n political conflicts between

Hindus and Muslims all over the nation. Deep down the heart of every Indian, still burns the fire

that almost destroyed India during the partition. The Constitution of Jammu and Kashmir is a

fossil remnant that reminds us of it.

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Contemporary Issues

Because of the uprisings by mass protests which sparked in order to cede land to the Hindu

pilgrims by the influence of Kashmir Peoples Democratic Party with Congress collapsed in

June2008 which was again anti-Indian demonstrations starting from 1990’s.14

Because of the November 26-28, 2008 by the Lashkar-e-Tayyaba which gave assent that it is

behind the attacks which comes under the Pakistani militants so India was on the verge of war

with the Pakistan, this brought lot controversy between the India and Pakistan and Pakistani then

Zardari said no first use of nuclear and LOC was under red alert and both got to compromise by

fighting the militants together.15

After this unethical and unusual act the Pakistani Government withdraw its support from the

Pakistani militants fighting in Kashmir, because of this there is decline in the terrorist activity

and the lives of the innocent people have been saved because of this.16

Conclusion

Article 370 should be more effective to bring peace and Prosperity and various campaigns should

be initiative to overrule the differences between the Hindu and the Muslims which is the main

cause of Conflict between both the nations. Moreover Peace can be restored over the aspect of

Jammu and Kashmir by providing employment over both the states by forming some treaty and

markets of both the economies and also by building bridges and abolishing the LOC between the

territories. Since this being a volatile issue in order to suppress the issue the LOC should be

made softer by adopting soft measures and not following a rigid mechanism and providing

relaxation to the public of Kashmir. The faith among each Hindu and Pakistani Muslims should

be encouraged and moreover brotherly hood should be raised between them. More the issue of

14 "A Good Vote in the Angry Valley," The Economist, December, 30th, 2008. Retrieved on 02/10/2012 from: <http://www.economist.com/world/asia/displaystory.cfm?story-id=12868164>.15 International Crisis Group, "Kashmir," Crisis Group, Retrieved Jan/ 19/2008 from: <http://www.crisisgroup.org/home/index.cfm?id=1268&l=1>.16 "A Good Vote in the Angry Valley," <http://www.economist.com/world/asia/displaystory.cfm?story-id=12868164>.

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Militants should be fought with togetherness and assure people of Jammu and Kashmir peace

and prosperity so that Special Status would be removed and form a federal united of India as

other states.

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Bibliography

A S Anand, The Constitution of Jammu & Kashmir, 5th ed., Universal Law Publishing

Co. PVT. LTD., Delhi.

K.G., Kaul, Kashmir through the ages, p. 112.

P.N., Bazaz, History of struggle for freedom in Kashmir, New Delhi, 1954.

Journals & Articles Referred

Constitution Assembly Debates (India), Vol. X, No. 10.

All India State People’s Conference, Kashmir, Bombay, 1939.

The Jammu and Kashmir Administrative Report, 1911.

The proposed new constitution of Jammu and Kashmir Council, as published in the

Parliamentary papers relating to Kashmir, 1890.

Imperial Gazetter of India, 1908, Vol. XV.

Lawrence to Sir Fedrick Currie, dated 12th November, 1846; as reproduced in Edwardes

and Merivale, Life of Sir Henry Lawrence, 3rd edition, London, 1872, Vol. II.

Notes on Jammu and Kashmir, National Archieves, Foreign, Political A, July 1863.

Websites Referred

<http://www.economist.com/world/asia/displaystory.cfm?story-id=12868164>.

<http://www.crisisgroup.org/home/index.cfm?id=1268&l=1

<http://www.economist.com/world/asia/displaystory.cfm?story-id=12868164>.

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article 370

Documents

parliamentary papers relating

sir fedrick currie

raja pratap singh

indian penal code

sir henry lawrence

dated 12th november

universal law publishing

kashmir administrative report