Genesis of Article 370

Rajeev Kaul

The state of Jammu and Kashmir acceded to India on the 26th day of October, 1947, by virtue of the Instrument of Accession signed by Maharaja Hari Singh, the then Ruler of Jammu & Kashmir state. The internal administration of the state even after its accession being governed by the J&K Constitution Act 1939 It was under this Act Maharaja Hari Singh appointed Sheikh Abdullah as the Emergency Administrator for the state.

On March 5, 1948, Maharaja Hari Singh issued the proclamation for constituting the Constituent Assembly for framing a Constitution of the state This proclamation marked the first definite step towards the establishment of popular ministry and towards framing of a democratic constitution of the state. In June, 1949, Dr Karan Singh, the then Regent of the Jammu and Kashmir state, on the advice of his Council of Ministers, nominated four representatives to the Indian Constituent Assembly which had undertaken the task of framing the Constitution of India. These four representatives of the State of Jammu and Kashmir were Sheikh Mohammed Abdullah, Mirza Afzal Beg. Maulana Masoodi and Moti Ram Baigra.

These nominees of the J&K state joined the Constituent Assembly of India on June 6, 1949. It was made clear that, while the accession of the J&K state with India was complete in fact and in law to the extent of the subject enumerated in the Instrument of Accession, the autonomy of the state with regard to all other subjects outside the ambit of the Instrument of Accession should be preserved.

Clause 8 of the Instrument of Accession provides. "Nothing in this instrument affects the continuance of my sovereignty in and over this state, or save as provided by or under this instrument the exercise of any power, authority or right enjoyed by me as Ruler of this State or the validity of any law at present in force in this state"

The jurisdiction in matters of External Affairs, Defence and Communications was transferred to the Govt. of India and the Union Parliament was given power to make laws for the state for the purpose of these matters only. Sovereignty in so far as the internal administration was concerned remained with the ruler.

Incorporation of Article 370 into the Constitution of India is the culmination of long and intricate discussions between Gopalaswamy Ayengar and the then leadership of the National Conference.

Part XXI of the Constitution of India contains Temporary, Transitional and Special provisions Article 370 envisages Temporary provisions with respect to the state of Jammu and Kashmir. Article 370 contains 3 clauses Clause (1) starts with the wording. Notwithstanding anything in this Constitution, Clause (1) is divided into sub clauses (a), (b), (c) and (d)

Sub clause (a) of clause (I) provides the provisions of Article 238 shall not apply in relation to Jammu and Kashmir Sub clause (a) is no more relevant as Article 238 has been repealed by the Constitution (Seventh Amendment Act) 1956.

Sub clause (b) has two paragraphs: viz (1) and (11). Paragraph (1) circumscribes the power of Parliament of India, to legislate with regard to the J&K state to the extent that Parliament can legislate only on those matters in the Union list and the Concurrent List, with prior consultation with the Govt. of J&K state, which are declared by the President to correspond to matters specified in the Instrument of Accession, governing the accession of the J&K state to India.

Paragraph (1) of sub clause (b) of clause (1) provides Parliament of India can legislate on all other matters which are in the Union List and State List with the prior approval of the Govt. of J&K state, which the President may specify by order.

Clause (1) has an Explanation which defines the Govt. of J&K Sub clause (c) of clause (1) provides that Article I of the Constitution of India shall apply in relation to state of J&K. Article 1 of the Constitution of India defines name and territory of the Union of India. Sub clause (d) of clause (1) envisages that all other provisions of the Constitution of India shall apply to state of J&K with such exception and modification as the President may by order specify Clause (d) has a proviso which says that the President shall not pass any order with regard to matters specified in the Instrument of Accession without prior consultation with the Govt. of the J&K state.

There is second provision to clause (d) which envisages that the President shall not pass any order with regard to matters other than those specified in the Instrument of Accession without the prior approval of the J&K state.

Clause (2) says if the approval of the Govt. of the state, referred in paragraph (II) of sub clause (b) of Clause (1) or in second proviso to sub clause (d) of clause (1) is given, before the Constituent Assembly of J&K state has been convened it shall be placed before such Assembly for its decision.

Clause (3) provides that despite what has been mentioned in the aforesaid provision of this article the President, by public notification, shall declare that this article shall cease to be operative or shall be operative only with such exception and modification and from such date as he may specify.

However there is a condition in the form of proviso to clause (3) which mentions that recommendation of the Constituent Assembly shall be necessary before the President issues such a notification.

According to one view, since the Constituent Assembly of the J&K state came to an end in 1957 after framing the Constitution of the J&K state, the operation of Article 370 has also come to an end as it was a temporary provision meant during the Constitution - making process of the J&K state. Since the Constituent Assembly finished its task so Article 370 ceases to operate. How far this view is correct is debatable.

DISCLAIMER:

The views expressed in the Article above are Author’s personal views and kashmiribhatta.in is not in any way responsible for the opinions expressed in the above article. The article belongs to its respective owner or owners and this site does not claim any right over it. Copyright Disclaimer under section 107 of the Copyright Act of 1976, allowance is made for "fair use" for purposes such as criticism, comment, news reporting, teaching, scholarship, education, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing."

Courtesy:- Rajeev Kaul and 2004 August Koshur Samachar