NIMT INSTITUTE OF METHOD &
LAW, GREATER NOIDA
PAPER PRESENTATION,
ON
“LEGAL BASES AND ISSUES IN
SCRAPPING ARTICLE 370”
SUBMITTED BY: PREETISH SAHU (3rd SEM)
About:-
What is Article 370?
Temporary provisions with respect to the State of Jammu and
Kashmir. Article 370 of the Indian constitution, which is of a
temporary nature, grants special status to Jammu and
Kashmir. Under Part XXI of the Constitution of India, which
deals with “Temporary, Transitional and Special provisions”,
the State of Jammu and Kashmir has been accorded special
status under Article 370. Even though included in 1st Schedule
as 15th state, all the provisions of the Constitution which are
applicable to other states are not applicable to J&K. allowing it
to have a separate constitution, a state flag and autonomy
over the internal administration of the state.
Historical Background:-
When India and Pakistan gained their independence on 15
and 14 August 1947, respectively; J&K chose to remain
independent. There was an agreement by J&K with Pakistan
and India that none of them will attack J&K. While India
respected the agreement and exercised restraint.
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.
On 5 August 2019, President Ram Nath Kovind issued a
constitutional order superseding the 1954 order, and making all
the provisions of the Indian constitution applicable to Jammu and
[Link] the resolutions passed in both houses of the
parliament, he issued a further order on 6 August declaring all
the clauses of Article 370 except clause 1 to be inoperative.
Instrument of Accession:
From 1947 till date The Instrument of Accession (IoA) is a legal
document executed by Maharaja Hari Singh, the then ruler of the
princely state of Jammu & Kashmir, on October 26, 1947,
declaring that the state accedes to India. The IoA gave India’s
Parliament the power to legislate in respect of J&K only on the
matters of defence, external affairs and communications. Apart
from defence, communications and external affairs, the IoA
mentions ancillary subjects that include elections to the
dominion legislature and offences against laws with respect to
any of the said matters.
Under Clause 5 of the IoA, Singh explicitly mentioned that the
terms of the IoA “cannot be varied by any amendment” of the
Government of India Act, 1935, or the Indian Independence
Act, 1947, “unless such amendment is accepted by me by an
Instrument supplementary to this Instrument.” In Clause 7, he
said, “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 the Government of India under any such future
constitution.”
Initially, Singh had decided not to join either India or Pakistan
and chose to remain independent. However, on October 22,
1947, thousands of armed men backed by Pakistan’s army
attacked the state from the north, forcing Singh to seek help
from India and then accede to it.
Using the IoA, Article 370 was incorporated in the Constitution
of India. In the past, the Centre has used Article 370 to amend
several provisions of the J&K constitution though the
President doesn’t enjoy the power to do so.
The Maharaja agreed that J&K’s accession to the “Dominion of
India” would be with the intent that the “Governor-General of
India, the Dominion Legislature, the Federal Court and any
other Dominion authority established for the purposes of the
Dominion” will be legally authorized to carry out in relation to
the state such functions vested in them by or under the
Government of India Act, 1935. Soon after the accession, an
interim state government was instituted by a proclamation
made by the Maharaja on March 5, 1948.
Incorporation of Article 370 in Indian Constitution in 1949:-
All the princely states were invited to send representatives to
India's Constituent Assembly, which was formulating a
constitution for the whole of India. They were also encouraged to
set up constituent assemblies for their own states. Most states
were unable to set up assemblies in time, but a few states did, in
particular Saurashtra Union, Travancore-Cochin and Mysore.
Even though the States Department developed a model
constitution for the states, on 19 May 1949, the rulers and chief
ministers of all the states met in the presence of States Department
and agreed that separate constitutions for the states were not
necessary. They accepted the Constitution of India as their own
constitution. The states that did elect constituent assemblies
suggested a few amendments which were accepted. The position
of all the states (or unions of states) thus became equivalent to that
of regular Indian provinces. In particular, this meant that the
subjects available for legislation by the central and state
governments was uniform across India.
In the case of Jammu and Kashmir, the representatives to the
Constituent Assembly requested that only those provisions of the
Indian Constitution that corresponded to the original Instrument of
Accession should be applied to the State and that the state's
constituent assembly, when formed, would decide on the other
matters. Government of India agreed to the demands shortly
before the above meeting with the other states. Accordingly, the
Article 370 was incorporated into the Indian Constitution, which
stipulated that the other articles of the Constitution that gave
powers to the Central Government would be applied to Jammu
and Kashmir only with the concurrence of the State's constituent
assembly.
Status of Article 35A:-
Article 35A, which provides special rights and privileges to the
citizens of Jammu & Kashmir, was incorporated in the
Constitution of India in 1954 by an order of then President
Rajendra Prasad, on the advice of the Jawaharlal Nehru Cabinet. It
gives the J&K legislature full discretionary powers to decide who
'permanent residents' of the state are. It also gives them special
rights and privileges in employment with the state government,
acquisition of property in the state, settling in the state, and the
right to scholarships and other forms of aid that the state
government provides. It also allows the state legislature to impose
any restrictions upon persons other than the permanent residents
regarding the above.
The state of Jammu and Kashmir defined these privileges to
include the ability to purchase land and unmovable property,
ability to vote and contest elections, seeking government
employment and availing other state benefits such as higher
education and health care. Non-permanent residents of the state,
even if Indian citizens, were not entitled to these 'privileges'.
Permanent Residents
The Jammu and Kashmir Constitution, which was adopted on
November 17, 1956, defined a Permanent Resident (PR) of the
state as a person who was a state subject on May 14, 1954, or who
has been a resident of the state for 10 years, and has “lawfully
acquired immovable property in the state”.The Jammu and
Kashmir state legislature can alter the definition of permanent
residents or modify the privileges applicable to them through a
law passed with two-thirds majority.
1.
Jammu and Kashmir Constituent Assembly incorporated in
Jammu and Kashmir Constitution discriminatory provisions under
Section 51 (Qualifications for membership of the Legislature – A
person shall not be qualified to be chosen to fill a seat in the
Legislature unless he is a Permanent Resident of the State)
2.
No person who is not a Permanent Resident of Jammu and
Kashmir can own property in Jammu and Kashmir.
3.
No person who is not a Permanent Resident of Jammu and
Kashmir can obtain job within Jammu and Kashmir Government.
4.
No person who is not a Permanent Resident of Jammu and
Kashmir can join any professional college run by government of
Jammu and Kashmir or get any form of government aid out of
government funds
Current Status of Article 35A:-
On 5 August 2019, the President of India issued a Presidential
Order, whereby all the provisions of the Indian Constitution are to
apply to the State without any special provisions. This would
imply that the State's separate Constitution stands abrogated,
including the privileges allowed by the Article 35A.
Ranbir Penal code:-
Jammu and Kashmir State Ranbir Penal Code or RPC was the
main criminal code applicable in the Indian state of Jammu and
Kashmir. The Indian Penal Code, applicable elsewhere in India,
was not applicable here under Article 370 of the Constitution of
India. It came into force in [Link] code was introduced during
the reign of Dogra dynasty with Ranbir Singh as its ruler and
hence named after [Link] was made on the lines of Indian Penal
Code prepared by Thomas Babington Macaulay. Now it has been
removed as the Modi government in its second tenure has passed
the bill to scrap provisions of Section 370 on 5 August [Link]
constitution of India which was applicable to the rest of India
except Jammu and Kashmir, has now become applicable in the
region of Jammu and Kashmir which has now become a Union
Territory along with the Ladakh region as a separate Union
Territory after the successful passage of the Jammu and Kashmir
reorganization bill in the Rajya Sabha and Lok Sabha respectively.
The Ranbir Penal Code has thus been dissolved. Henceforth, the
Indian Penal Code has come into force in the region.
Difference between IPC and RPC:-
Section 4 of IPC states that IPC covers even the crimes which are
done by computer resources whereas RPC does not define
anything about it.
Section 153 AA of IPC States that knowingly carrying arms in a
mass drill is punishable but RPC does not state anything about this
important issue.
Section 195 A of the IPC states that anyone who threatens a
person for giving false evidence or statement should be punished
whereas there is no such provision in RPC on that.
Scrapping on Article 370- Judiciable or Non-Judiciable?
On 5 August 2019, Home Minister Amit Shah announced in the
Rajya Sabha (upper house of the Indian Parliament) that the
President of India had issued The Constitution (Application to
Jammu and Kashmir) Order, 2019 under Article 370, superseding
the The Constitution (Application to Jammu and Kashmir) Order,
1954. The order stated that all the provisions of the Indian
Constitution applied to Jammu and Kashmir. Whereas the 1954
order specified that only some articles of the Indian constitution to
apply to the state, the new order removed all such restrictions.
This in effect meant that the separate Constitution of Jammu and
Kashmir stood abrogated.
The Home Minister Amit Shah introduced the Jammu and
Kashmir Reorganisation Bill, 2019 in the Rajya Sabha to convert
Jammu and Kashmir's status of a state to two separate union
territories, namely Union Territory of Jammu and Kashmir and
Union Territory of Ladakh. The union territory of Jammu and
Kashmir was proposed to have a legislature under the bill whereas
the union territory of Ladakh is proposed to not have [Link] the
end of the day, the bill was passed by Rajya Sabha with 125 votes
in its favour and 61 against (67%).The next day, the bill was
passed by the Lok Sabha with 370 votes in its favour and 70
against it (84%).The bill became an Act after it was signed by the
president.
The people of Jammu and Kashmir and Ladakh will be able to
access and enjoy the same rights, same privileges and same
facilities as their fellow citizens in the rest of the country.
the recent enactment of new laws and amendments to existing
ones will also be beneficial to people of Jammu and Kashmir,
provisions related to the Right to Education; accessing public
information through the Right to Information; reservations in
education and employment and other facilities for traditionally
deprived communities; and justice for our muslim by abolishing
unequal practices such as instant triple talaq.
Key Changes
Then Now
Jammu & Kashmir
Now Jammu & Kashmir
was a state with
will be a Union Territory.
special status.
Only citizens of
People from anywhere in
Jammu and Kashmir
India will be able to buy a
were allowed to buy
property.
land in the state.
No ‘outsider’ could Now any citizen of the
settle in the state. country can settle in J&K.
No restriction on filing
RTI could not be filed
RTI
Period of Legislative Now, it will not be for six
assembly was 6 years. years.
Jammu & Kashmir Only the National Flag
had a separate flag. will be there.
No separate constitution,
J&K had a separate
law & order will be under
constitution.
center government.
Ladakh will be a separate
Ladakh was a part of
Union Territory without a
Jammu & Kashmir
legislature.
The constitutional Now, state head will be
head was Governor Lieutenant Governor.
Case history similar to this in other country:-
China:-
China Violated the Seventeen Point Agreement With Tibet
In many ways this resembles the violation of the Seventeen Point
Agreement signed between representatives of Tibet and China in
1951, which guaranteed local autonomy and non-interference
from Beijing in local political systems. This was repudiated by the
Dalai Lama when he fled into exile in 1959. By that time the
Chinese government had violated every article of the agreement.
Even if the Dalai Lama did not repudiate it, the agreement had lost
any legitimacy. In other words, the principal document between
the two parties, which bound Tibet to China, was rendered null
and void. This fact is made most obvious by the Chinese
government’s gradual rejection of the Seventeen Point Agreement
as the basis of the legitimacy of its rule in Tibet. It’s One China
Policy is predicated not on any agreement, but on the argument
that Tibet was always part of China. It is predicated on force and
power alone.
Conclusion:-
The Article 370 is an internal arrangement which says that how
relations between India and Jammu and Kashmir would be
governed. Also in international relations, the most important way
to substantiate your claim over a territory is to accumulate power.
Our neighbor China had also captured some territory in J&K
without any Instrument of Accession or any such article in
constitution.
Therefore in most likelihood, even if Article 370 is deleted, it
would only effect the internal relations between India and J&K
and would not substantiate the claim of any foreign power over
the state. However, the most common solution for any
controversial problem in India is the status quo. So in this case
also, government would prefer its time tested medicine of status
quo in the foreseeable future.
