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The state of Jammu and Kashmir had special powers of autonomy from 1949, under Article 370 of Indian Constitution. Article 370 allowed the state to have its own constitution, a separate flag, and autonomy over internal matters except defense, communications, and foreign affairs.
In 1947, after partition of British India, princely states were given the option to join either India or Pakistan. The Maharaja of Jammu and Kashmir, Hari Singh, initially chose to remain independent, later he offered Stand Still Agreement to both India and Pakistan. Facing an invasion by tribal militias from Pakistan, Maharaja Hari Singh sought military assistance from India. In return, he signed the Instrument of Accession on October 26, 1947, acceding Jammu and Kashmir to India. On 17th October 1949, Article 370 was incorporated in Indian Constitution . Article 370 was drafted by Sheikh Abdullah, the Prime Minister of Jammu and Kashmir, in consultation with India’s Prime Minister, Pandit Jawaharlal Nehru. After adoption of Indian Constitution on 26th January 1950, Article 370 as a temporary provision was made applicable.
The Presidential Order of 1950, officially the Constitution (Application to Jammu and Kashmir) Order, 1950, came into force together with the Constitution of India on January 26, 1950. While it specified the subjects and Articles of the Indian Constitution that corresponded to the Instrument of Accession as required by Article 370(b)(i), 235 Articles of the Constitution of India remained completely inapplicable to Jammu and Kashmir.
In 1952, The Delhi Agreement was signed between Prime Ministers of India and Jammu and Kashmir giving special position to the state under Indian Constitutional framework. After this agreement on 6th February 1954, the Jammu and Kashmir constituent assembly ratified the accession of the state to the Union of India. Meanwhile, Article 35A of the Indian Constitution was added by a Presidential Order, specifically the Constitution (Application to Jammu and Kashmir) Order, 1954. This order was issued by the then-President of India, Rajendra Prasad, on the advice of the Jawaharlal Nehru-led Union Government, under the provisions of Article 370. Article 35A granted the Jammu and Kashmir legislature the power to define "permanent residents" of the state and provide them with special rights and privileges, including the ability to own property, obtain government jobs, and access educational scholarships in the state.
Constitution of Jammu and Kashmir was adopted in 1956 as made by Constituent Assembly of Jammu and Kashmir. It provided that Jammu and Kashmir shall remain integral part of India.By this Jammu and Kashmir was made part of India, but it had the special status through the Article 370.
Article 370(1)(b)(i) provided that the Indian Parliament shall have the power to make laws on subjects corresponding to the ones provided for in the Instrument of Accession in “consultation” with the “Government of the State”. Article 370(1)(b)(i) provided that the Indian Parliament shall have the power to make laws on other subjects in “concurrence” with the “Government of the State”.
Article 370(2) mentions the “Constituent Assembly” for the purpose of drafting a Constitution for J&K, underlining the unique arrangement between India and Jammu and Kashmir where each would have its own Constitution. This Constitution was finally drafted and came into operation on November 17, 1956.
Article 370(3) provided for making Article 370 inoperative by the President of India but only on a “recommendation” of the “Constituent Assembly of the State”.
Accordingly in simple words, the Parliament needs the approval of the Government of Jammu and Kashmir in order to apply laws in Jammu and Kashmir. There are some exceptions such as Defence, finance, communication and foreign affairs. According to Article 370, no person from outside Jammu and Kashmir can purchase a property in Jammu and Kashmir. The central Government even has no power to proclaim a financial emergency in Jammu and Kashmir. Jammu and Kashmir are bound as a state under Indian Union by Article 370(1)(c).
As par with this the special status to the Jammu and Kashmir was given as per the prevailing circumstances in 1950 and was meant to be only and temporary provision as the title of the Article 370 suggest it is only a temporary and transitional provision. It was nothing to be meant to have a permanent special staus. The intention behind framing the language of Article 370 in that manner was only to provide Jammu and Kashmir a special status for temporary period and not permanently.
The people of Jammu and Kashmir were facing so many issues due to temporary provision of Article 370 such as national integration, economic development, security concern, social justice, political reforms and electoral commitments. It also faced significant opposition from those who saw it as unconstitutional and potentially destabilizing. The citizens of India also faced injustice and unfairness because of special status of Jammu and Kashmir. Indian public opinion viewed Article 370 as a barrier to national integration and development. So The Government of India took a significant decision to abrogate Article 370 from Indian Constitution.
In 2015, after elections in Jammu and Kashmir, Bhartiya Janata Party along with Peoples Democratic Party formulated a government together. Later in 2018 where BJP breaks their alliance with PDP. As per, Constitution of Jammu and Kashmir Article 92, states that if the states constitutional machinery is not running properly then Governor's Rule shall be applicable for period of 6 months. So, from 2018 Governor Rule was imposed in Jammu and Kashmir and from December 2018 President Rule impose in Jammu and Kashmir. Thereafter in May 2019 BJP wins in parliamentary elections.
There after, the steps we're taken in order to abolish the temporary provision of Article 370. On August 5, 2019, Presidential Order 1954 was superseded by Presidential Order 2019. The Presidential Order 2019 stated that all provisions of the Indian Constitution, as amended from time to time, and with exceptions and modifications shall apply to Jammu and Kashmir. Since Jammu and Kashmir was under President’s rule, the legislative powers were deemed to be vested with the Indian Parliament. Thereafter, an amendment was introduced to Article 367(4) by which Clause (d) provided that a reference to “Constituent Assembly of the State” in Article 370(2) of the Indian Constitution would be made as “legislative assembly of the State." Since the prevailing circumstances were favorable to the event happened the provisions were implemented accordingly. As quoted by Dr. Shyam Prasad Mukharjee,
“There cannot be two constitution, two prime minister and two flags in one nation.”
The Jammu and Kashmir Reorganisation Bill, 2019 was also introduced in the same passage of Lok Sabha proceedings. The Bill bifurcated Jammu and Kashmir into two new Union territories namely Jammu and Kashmir and Ladakh, where the former retained a legislative assembly. The Bill was subsequently passed on August 9, 2019. On August 6, 2019, the Indian President issued a Presidential Order , wherein as and from August 6, 2019, all clauses of Article 370 ceased to be operative. The abrogation of Article 370 lead to removal of special status of Jammu and Kashmir and all the provisions of Indian Constitution.
As a result of abrogation of Article 370, instability was created in Jammu and Kashmir. Also it instilled a fear on insecurity in the mind of local people. They were tense about the prospects of the Central Government as there was an impression in the back of their mind by this move, the central government aimed to take away the identity and the culture of Kashmiris. As it allowed anyone in India to use the Kashmir land and resources as they wanted to be and there were no restrictions anymore. A lot of people believe that the abrogation of the special status was outright a political move to appease the Hindu population of the country and Kashmir. It also received lot of criticism from International society and media as they targeted India of the sovereignty of the land of Jammu and Kashmir and its people.
Our Constitution us a ray of Hope : H for harmony, O for Opportunity, P for people's participation and E for equality. The Constitution is the supreme law of the land and any provision which is in derogation of it or which does not preserve constitutional dignity, shall be made void. The abrogation of Article 370 provided one law for the whole country. As stated by Amit Shahaji, "One flag, one PM, one constitution," the aim could be achieved.
Credits : Miss Neha Arvind Mali & Miss. Mugdha Navin Joshi
