The central government’s decision to abrogate Article 370, which granted special status to Jammu and Kashmir, has been upheld by the Supreme Court in a unanimous verdict on Monday (December 11), four years after its removal. Article 370 was initially included in the Indian Constitution’s “Temporary, Transitional and Special Provisions” in Part XXI, serving as a temporary measure during the state’s war conditions. This provision granted Jammu and Kashmir the ability to have its own constitution, state flag, and control over internal administration, with certain exceptions in defense, foreign affairs, finance, and communications. The historical context of the state’s accession to India and its colonial past provided the foundation for this autonomy. Although Article 370 is now a thing of the past, it is important to understand its origins within the Indian Constitution.
From 1846 to 1858, Jammu and Kashmir existed as a princely state under British rule. It was in a subsidiary alliance with the British East India Company and later came under the direct control of the British Crown until 1947. This princely state was established after the First Anglo-Sikh War when the East India Company sold the Kashmir Valley to the Maharaja of Jammu, Gulab Singh, as war indemnity for Rs 75 lakh.
During this period, Jammu and Kashmir remained a part of the British Raj but retained its sovereignty in most matters, except for defense, foreign affairs, and communications. The state also had restrictions on outsiders owning properties within its borders.
However, significant changes occurred in 1947. During the Partition, Maharaja Hari Singh, the ruler of Jammu and Kashmir, chose not to align with either India or Pakistan. However, he was soon confronted with an invasion by tribal militias from Pakistan, supported by the Pakistani establishment, in October 1947.
In desperate need of assistance, the Maharaja reached out to New Delhi for help in repelling the invasion. The Indian government, led by Prime Minister Jawaharlal Nehru, agreed to provide aid but requested Maharaja Hari Singh to sign an Instrument of Accession as a prerequisite.
With limited options, the Maharaja agreed to sign the Instrument of Accession. However, he ensured that it did not compromise the state’s sovereign status.
On October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession, agreeing to accede to the newly independent India on matters of defense, foreign affairs, and communications.
The following day, Lord Mountbatten, the Governor-General of India at the time, accepted the agreement of accession under the provisions of the Indian Independence Act.
Clause 7 of the Instrument of Accession underscored the condition that Jammu and Kashmir’s accession to India was contingent upon the state’s right to maintain its own constitution and a significant level of autonomy. This particular clause played a pivotal role in the establishment of Article 370.
Article 370 was specifically crafted to safeguard these rights, ensuring that Jammu and Kashmir held a distinctive status within the Indian Union.
Jawaharlal Nehru entrusted N Gopalaswami Ayyangar, a prominent member of the seven-member Drafting Committee of the Indian Constitution, with the task of drafting the Article aimed at protecting the special status of Jammu and Kashmir.
Negotiations commenced in July 1949 regarding the structure of the proposed Article. Alongside Jawaharlal Nehru, Sardar Vallabhbhai Patel, and Ayyangar, Sheikh Abdullah, the Prime Minister of Jammu and Kashmir and a member of the Constituent Assembly, also participated in these discussions.
The deliberations persisted for several months.
On October 17, 1949, Article 370, initially presented as Article 306A, was incorporated into the Constitution by the Constituent Assembly.
RATIONALE BEHIND ARTICLE 370
In order to justify the necessity of Article 370, Ayyangar elucidated the “special conditions” prevailing in Jammu and Kashmir to the Constituent Assembly.
Ayyangar stated that there has been an ongoing war within the boundaries of Jammu and Kashmir State. Despite a cease-fire agreement at the beginning of this year, the conditions in the state remain unusual and abnormal. The administration of the state should therefore be adjusted to these exceptional circumstances until normalcy is restored, similar to other states.
Due to the absence of a state legislature in Jammu and Kashmir, Ayyangar suggested the inclusion of Article 306A as an “interim system” until the state adopted its own constitution.
On January 26, 1950, the Constitution of India was enacted, and Article 370 established the framework for Jammu and Kashmir’s relationship with the rest of India.
Over time, through a series of Presidential Orders, the government extended most of the Constitution’s provisions to Jammu and Kashmir, gradually diminishing the autonomy granted by Article 370.
This process reached its culmination on August 5, 2019, when the government revoked Article 370 and divided the state into two Union Territories: Jammu and Kashmir, and Ladakh.
On December 11, 2023, the Supreme Court unanimously upheld the government’s decision, while emphasizing the need for elections to be held in Jammu and Kashmir by September 2024 and the restoration of statehood as soon as possible.
Article 370 is no longer a part of the Constitution, and Jammu and Kashmir is now effectively “fully integrated” into the Indian Union. As desired by the Supreme Court, the state will regain its statehood and become an integral part of India, similar to any other state.