This article has been written by Pragya Srivastava, a student of Banasthali Vidyapith.
The history of India regarding the state of Jammu and Kashmir is unforgettable in nature; the brutality involved to conquer the state would remain alive in the memory of both the citizens of India and Pakistan. The history of accession could be blamed but it would be of no use. It could be narrated as a story that when India attained independence in 1947, August 15. Among 565 princely states in India Jammu and Kashmir were one of it. A choice was put up before these states either they can join the dominion of India or of Pakistan or remain independent. The ruler of Jammu and Kashmir Maharaja Hari Singh chose neither to join India nor Pakistan instead he had something else into his mind where he sent a proposal of Standstill Agreement to both the dominions. Pakistan accepted the proposal and sent it back to the state but India acted smartly and refused to accept the offer on the basis that there has to be some discussion made to reach a conclusion thus, the representative on the behalf of the king sent to Delhi. Pakistan accepted the offer on the perception that the state had the majority population of the Muslim community so according to the logic of Mohammad Ali Jinnah it could be conquered and become a part of Pakistan. To implement this they attacked the tribal area of the state so that they could drive out Maharaja Hari Singh from the land of Jammu and Kashmir. It resulted in Poonch Uprising which had the ideology of ‘Azad Kashmir’ this movement was basically against the reign of the king and to demand security for the land. To handle the chaos the kind had the only option to ask help from India. King Maharaja Hari Singh signed the Instrument of Accession on 26th October 1947 with other princely states which made the land the legal and Constitutional land of India. The action was immediately taken and Indian troops were sent to handle the situation to let the invaders vacate the land. On immediate action, emergency Government was formed in the state which was headed by Sheikh Mohammad Abdullah on 30th October 1947.
United nation also played an important role when on 1st January 1948 the issue of Jammu and Kashmir was taken up by the united nation under its charter of Article 35. At the time of discussion, Pakistan refused to agree with the statement that it provided aid for the tribal attacks and on the other hand blamed India for annexing the territory of Jammu and Kashmir. On hearing the representatives of both the countries UN Security Council opened the debate on regarding Jammu and Kashmir on 7th January 1948 to resolve the tension between India and Pakistan. In the meantime, the agreement was temporary in nature which provided special status to Jammu and Kashmir. Hence, the concept of Article 370 and Article 35A was evolved from the Instrument of Accession signed by Maharaja Hari Singh.
Article 370 of the Indian Constitution
Article 370 throws light on the modifications made for Jammu and Kashmir-
- It would provide a separate constitution for the state. Any change made in the name, boundary, or territory of the state would be with the permission of the state legislature.
- Part VI of the Indian Constitution which talks about state government will not apply to the state of Jammu and Kashmir.
- Special status would be given to the residents of the state who are permanently living in there and which would provide employment, government scholarship and acquisition of property.
- Directive Principles of State Policy and Fundamental duties will not be applied to the state.
- There would be no right given to the High Courts of the state to issue writs except in the matters of the Fundamental Rights.
- National Emergency can only be imposed by the union without the interference of the state government. The official language of the state could relate to the official language of the union.
- Schedule fifth and sixth of the Indian Constitution would not be applicable to the state of the Jammu and Kashmir.
- President can rule over the state at the time of the Constitutional breakdown of state machinery. Residuary power lasts with the state except in certain cases if there is any terrorist attack, harm to the sovereignty or integrity of India, National Flag, National Anthem etc.
Article 370 ensures special status to the state of Jammu and Kashmir. The article imposed several restrictions on the working of the Central government towards the state. The instrument of Accession led the relation between the state of Jammu and Kashmir and India where it had surrendered its defense, external affairs, and communication. This clearly shows the union in India has the power to govern these three subjects of the state.
Article 35A of the Indian Constitution
This provision was added in the state of Jammu and Kashmir in order to decide the ambit of permanent residents or who all can be called the residents of Jammu and Kashmir. Article 35A gave privileges in other aspects too like the acquisition of the property, public sector jobs, and government scholarship in education, public welfare, and public aid.
The history behind Article 35A is that on the advice Jawaharlal Nehru the then cabinet, Rajendra Prasad Incorporated the provision in the Indian Constitution in 1954.
Abrogation of Article 370 and Article 35A
The Modi government on Monday 5/08/2019 scraped article 370 and 35A. This step of the Modi government has redrawn the map of the state Jammu & Kashmir. The abrogation of article 370 and 35A ceased the separate constitution of state Jammu & Kashmir. There would be no separate flag for the state of Jammu & Kashmir. Any citizen of India is now permitted to buy or sell the property in the state of Jammu & Kashmir. There will be no separate laws regarding citizenship, Criminal Procedure code will replace Ranbir Penal Code. Further article 356 & 360 would be applicable in the state, the reservation would be provided to the minorities. The state of Jammu & Kashmir would be the Union Territory of India and Ladakh will join it without the legislature.
This decision of the Modi government has a more or less equal measure of acceptance and criticism people who accepted had the view that the consideration was temporary so it was for a limited time period. Article 370 gave a separate Constitution which had the imbalance of the fundamental rights or we can say it did not treat people equally. The critics viewed that it has shaken the bridge of the constitution built India and Jammu and Kashmir. Mehbooba Mufti contended that it would be a call of destruction to the State of Jammu and Kashmir after the Pulwama attack. Hence, this a controversial issue that is very sensitive in nature.