By: – Mir Ajaz Bin Muhammad
It is an election season so many issues will be raised and the famous and evergreen issue with no surprise is again making headlines, yes I am talking about constitutional relation of union of India with the state of Jammu and Kashmir or simply the Article 370 of Indian constitution. Let we try to declutter this unique arrangement and try to understand its backgroing and context which makes Jammu and Kashmir more sovereign than Maharashtra( or any other state of India) and less sovereign than Nepal.
There were more then 560 princely state in British india. These princely states were ruled by the native Princes which means they were not under the direct control of British Empire but these Princes owed their allegiance to British Crown. Partition plan was announced in July 1947 and it became clear that country shall be divided into two nations India and Pakistan. But what will be the fate of these Princely States? These Princely states were provided with the option either to join India or Pakistan or remain independent. Many joined India and many joined Pakistan except Princely State of Kashmir which joined none. Jammu and Kashmir was then ruled by Maharaja Hari Singh and he signed a “Standstill agreement” with both Indian and Pakistan and made it clear that I am going to be at equi-distant from both the nations.
In 1947 Indian Independence act was passed which not only created two independent nations but it also make an end to the relation of British Crown with Pricely States. So after 15th August 1947 we had Independent nation of India, Independent nation of Pakistan and also we had Independent Sovereign State of Jammu and Kashmir.
On the otherside a mighty popular moment was taking shape in Jammu and kashmir which was led by a Chrismatic leader Sheikh Mohammad Abdullah. He wanted to overthrow monarchy of Maharaja Hari Singh to establish Jammu and Kashmir as democratic socialist state and he was also in favor of merger with India.
Meanwhile, Pakistan voilated “Standstill Agreement” and wanted to acquire Jammu and kashmir as it was Muslim majority state. Maharaja Hari Singh at this point of time sought the help of Indian Government but lord Mountbetten the then Governor General of India made it clear that Indian Government will help Kashmir only if they accede to India. After much of thoughts Maharaja Hari Singh decided to sign instrument of accession with Government of India just like other princely state did but rest also signed Merger Agreement which Jammu and Kashmir did not. So by this Jammu and Kashmir only acceded to India but not merged with india and also the Instrument of accession was conditional i.e only three subjects were transferred to Government of India they were Defence, External Affairs and Communication. This conditional instrument of accession was signed on 26th of October 1947 and on very next day i.e 27th of October 1947 indian army landed in Kashmir and a full fleged war between India and Pakistan broke out. It was first of many wars between two nations over the Kashmir dispute.
Meanwhile around all this happnings India
s then Prime Minister Pandit Jawaharlal Nehru approched United Nation and asked for help to end the war and Nehru also persuaded Maharaja Hari Singh to give away his power so that Mr. Sheikh Mohammad Abdullah can become Prime Minister of Jammu and Kashmir. UN called for ceasefire so war came to an end and UNs Security Council also passed the resolution of “PLEBISCITE” or Right to Self-determination. UN also said there should be complete demilitarisation within terrority of Jammu and Kashmir by both India and Pakistan and then let the vote happen so people of Jammu and Kashmir will decide their fate and future.
Remember this all was happning in the year 1948 when Independent india was drafting its constitution and confusion in the constiuent assembly was this, how to link Jammu and Kashmir constitutionally with the rest of India? (as J&K didn
t signed merger agreement) and after five months of debate and discussions an article was given birth which is ARTICLE 370 whoes title was/is Temporary provision(Part XXI) because it was felt that till the time UNs resolution was not enforced there must be a temporary constitutional link between Jammu and Kashmir and Union of India.
As per the Article 370, the parliament of India will have the power to make laws only on those subjects which were mentioned in the Instrument of accession (Defence, external affairs and Communication) and also whenever Parliaments makes law on these subjects the Government of Jammu and Kashmir shall be consulted. But other provisions of Indian constitution can be enfored in Jammu and Kashmir by means of Presidencial order after the concurrence of Jammu and Kashmir Government which needs to be recitified by the Constiuent Assembly of Jammu and Kashmir. Here is an intrested thing that, How the constiuent Assembly (don’t confuse this with Legislative Assembly)of Jammu and Kashmir came into this picture. To understand that we have to go back when UN intervein and Shekh Abdullah became Prime Minister of Jammu and Kashmir, Pandit Nehru addressed people of Jammu and Kashmir and said, “I am promising you PLEBiSCITE and right to self determination”. Prime Minister of Jammu and Kashmir Sheikh Abdullah in the mean time said we will have our own constiuent assembly which will draft constitution of Jammu andKashmir, so to decide fate of Kashmir and its relation with rest of India. This idea of Abdullah was welcomed by Nehru as all the members of constiuent assembly belonged to party which was headed by Sheikh Abdullah who was in favor of merger with india. So by this arrangement India wanted to send a massage to rest of world that they are not forcefully acquiring Jammu and Kashmir and not by means of any conspiracy which Pakistan alleged.
Another provision under Article 370 is that, Any amendment in Indian Constitution (under article 368 of Indian constitution ) shall not automatically apply to the state of Jammu And Kashmir unless and untill Government of Jammu and Kashmir agrees. Like what happened in the recent One hundred and first Amendment of constitution (GST) which came into effect in rest of india on July 1, 2017 but in the state of Jammu and Kashmir it came into effect after a week only when Jammu and Kashmir Government gave it a nod.
From the beginning people questioned Article 370, like Maulana Hasrat Mohani felt that it was discrimination to the people of Jammu and Kashmir, so he asked a question in constituent Assembly on October 17,1949 “WHY THIS DISCRIMINATION PLEASE”. In reply Gopalaswami Ayyanger (poineer to draft Art. 370) said, “Kashmir unlike other princely States was not yet ripe for integration. India had been at war with pakistan over Jammu and Kashmir and while their was a ceasefire, the condition were still UNUSUAL and ABNORMAL. Parts of the state territory was in the hands of rebels and enemies”. He also talked about “Entanglement” and said “ Will of the people through the instrument of the constituent Assembly will determine the Constitution of the state as well as the sphere of Union (Indian) jurisdiction over state(J&K)”.
Under this constitutional arrangement only two articles of Indian Constitution were directally applicable to the state of Jammu And Kashmir they were Article 370 itself and Article 1 of indian constitution which says , “India, that is Bharat, shall be a union of state”. So within the phrase
union of state the state of Jammu and Kashmir also comes under. Article 370 is the only constitutional link through which other provisions of Indian Constitution can be enforced to the state of Jammu and Kashmir.
Here raises an important question, if only two Articles of Indian constitution were applicable to Jammu and Kashmir than how other provosions of constitution came to Jammu and Kashmir like Part III (Fundamental rights), Part IV (Directive Principles of State Policy), Election Commisssion, Supreme Court, Sadray-e-Riyasat replaced by Governor, Wazir-e-azam (Prime Minister)of Jammu and Kashmir became Wazir-e-Aala (Chief Minister)and so on. this problem was discussded between then Prime Minister of India Pandit Jawaharlal Nehru and then Prime Minister of Jammu and Kashmir Sheikh Mohammad Abdullah which gave birth the Delhi Agreement of 1952. Let we continue that next time….