Jammu and Kashmir had enjoyed a special constitutional relationship with the Union of India because of the circumstances in which Maharaja Hari Singh, the ruler of Kashmir, signed the Instrument of Accession after Indian independence in 1947 ended British paramountcy over his princely state. Monday’s move has not repealed Article 370; it has effectively made it defunct. It has done away with Art 35A which emanated from it.
Why Maharaja agreed
The instrument of accession was executed on October 26, 1947 by Hari Singh and accepted by Lord Mountbatten. The circumstances and timing of the signing are important. A few days before that, Pashtun “tribesmen” and Pakistani irregulars had crossed into his state and were pressing towards Srinagar. The maharaja turned to India, but India could only defend it as a formal part of its territory. Clause 5 of the document said that the terms of the accession “shall not be varied” by any amendment to the Govt of India Act of 1935 or the Indian Independence Act 1947 unless accepted by Hari Singh in a supplementary instrument. Clause 6 disallowed the making of laws to acquire land in the state “for any purpose” but permitted Hari Singh to do so for the Dominion of India for a law applicable to the state. Clause 7 said no future Constitution of India (which was still to be written) could be imposed on the state.
In 1950, in the original Constitution of India, J&K was listed as a Part B state, along with the other princely states that had merged by Instruments of Accession, and Hyderabad and Mysore. Party B states were then abolished and J&K was by an amendment of the Constitution put into Article 1 as India’s 15th state and irrevocably part of the “territory of India”. It continued to enjoy the special status granted to it under Article 370.
Plebiscite out, special status in
Article 370 was incorporated in Part XXI (temporary provisions with respect to the State of Jammu and Kashmir) of the Constitution. The state’s constituent assembly had wanted only those aspects of the Indian Constitution that reflected what Hari Singh had signed away. Besides Article 1, it was the only other article of the Indian Constitution that automatically applied to J&K. The other provisions of the Indian statute could apply to the state only if its constituent assembly concurred.
Article 370 provided Jammu & Kashmir with special status, allowing it its own state constitution. The Union of India could legislate/act only in defence, foreign affairs and communications. Since the 1950s, there have been efforts to pull the state into a deeper embrace with the Union, but Art 370 was strengthened when Sheikh Abdullah, who had become the second Prime Minister of J&K in 1948 and was later dismissed, came to an agreement - after spells of detention - with Prime Minister Indira Gandhi in 1975. In return for giving up his demand for a plebiscite, special status for J&K was allowed to continue and Sheikh Abdullah became chief minister.
However, over the years, the state was made subject to many Indian laws through various amendments in concurrence with the state assembly, the logic being that it was the natural successor to the J&K constituent assembly, which by definition was a transitional body.
35A defines who is a permanent resident
Article 35A was made part of the Indian Constitution in 1954, through a presidential order - though its genesis goes back to early 20th century Dogra apprehensions of an influx from Punjab, which they feared would change the state’s demographic and land ownership patterns. The article, which defines who is a permanent resident of J&K and lays down laws restricting property purchase and ownership to such permanent residents, also discriminated against women, depriving them of their state subject rights if they married non-permanent residents. The J&K high court ruled against this aspect in 2002. It has been the subject of acrimonious political debate and was challenged in the Supreme Court in 2014 on the grounds that it had been added to the Constitution not through an amendment passed by Parliament but by Presidential decree. Monday’s Constitution (Application to Jammu and Kashmir) Order 2019 supersedes the 1954 order, in effect scrapping Art 35A.
Sadr-i-Riyasat or Guv: It’s All In a Word
Article 370 said no changes could be made to the Constitution regarding the status of J&K without the concurrence of the state’s constituent assembly. The constituent assembly, though, was dissolved in November 1956 without providing any alternative to obtaining its concurrence. Art 370, originally written as a temporary measure, was treated in several court orders and therefore having become permanent. However, a presidential declaration on November 15, 1952, under Art 370(3), had defined the “government” of J&K as meaning the Sadr-i-Riyasat of the state acting under the advice of the state’s Council of Ministers. Then, in 1965, the term “Sadr-i-Riyasat” was changed to “Governor” by the Constitution of Jammu and Kashmir (6th Amendment) Act, 1965. The change meant that a Sadr-i-Riyasat elected by the state assembly was replaced by a governor appointed by the President of India.
Monday’s Constitution Order 2019 was issued by the President under Article 370, Clause 1, with the concurrence of the “government of J&K”. “Government”, here, means the governor.
