Article 370: Unveiling Its Legal and Historical Context

  Aug 14, 2023

Article 370:The Legal and Historical Context

What is Article 370?

Article 370 was a temporary provision in the Indian Constitution that granted special autonomous status to the state of Jammu and Kashmir. It allowed the state to have its own constitution, flag, and autonomy over various matters except foreign affairs, defense, and communications.

Why was Jammu and Kashmir given special status?

Jammu and Kashmir was granted special status due to the circumstances of its accession to India after Independence. The state's ruler, Maharaja Hari Singh, sought India's help to fend off military attacks from Pakistan in 1947. In return, he signed the Instrument of Accession, which allowed Jammu and Kashmir to become a part of India under certain conditions.

What did Article 370 entail?

Article 370 laid out three key principles:
Limited power of Parliament: Indian Parliament's jurisdiction over Jammu and Kashmir was limited to matters specified in the Instrument of Accession. For other subjects, Parliament needed the state government's concurrence.
Autonomy over state laws: Jammu and Kashmir had its own constitution and enjoyed a degree of autonomy over its laws and regulations.
Applicability of the rest of the Indian Constitution: While Article 1 (declaring India a Union of States) and Article 370 itself were applicable to Jammu and Kashmir, other provisions of the Indian Constitution needed the President's Orders with exceptions and modifications to apply to the state.

How was the special status removed?

On August 5, 2019, the Indian government, under President Ram Nath Kovind's order, revoked Jammu and Kashmir's special status. This was done legally as Art.370 allows its own abrogation when the president passes an order to that effect with the concurrence of the Constituent Assembly. Since the Constituent assembly was dissolved in 1957, the President interpreted Constituent assembly to mean legislative assembly. Assembly meant Parliament as the state was under President's Rule at that time. Because all work of the legislature is transferred to the parliament by the President under President’s rule as we have studied in our classes.
The order declared that all provisions of the Indian Constitution would be applicable to Jammu and Kashmir.

What were the key changes made by the revocation?

The revocation of Article 370 had significant implications:
Abolishment of autonomy: Jammu and Kashmir's autonomy and special privileges were effectively removed.
Bifurcation into Union Territories: The state was reorganized into two Union Territories – Jammu and Kashmir with a Legislative Assembly, and Ladakh without one.
Changes to key terms: References to "Sadar-i-Riyasat" (Constitutional Head) were changed to "Governor," and references to "Constituent Assembly" were changed to "Legislative Assembly."

What legal issues have been raised?

The legal Q&As related to the abrogation of Article 370 include:
Whether the special status of Jammu and Kashmir had become permanent after the Constituent Assembly did not take any decision on Article 370.No.Because the Constitution describes Art.370 as transitional and temporary.
Whether the alteration or abrogation of Article 370 required the State's Constituent Assembly's recommendation.President interpreted the CA to be LA and the Governor due to President’s rule as mentioned above.
Whether the dissolution of the State Constituent Assembly made Article 370 beyond abrogation.Answered above
Whether Parliament had the authority to alter the state's special status unilaterally.It was not done unilaterally. Letter of law was followed.

Why is history important in this context?

History is crucial to understanding the legal arguments because it sheds light on the circumstances and intent behind the accession of Jammu and Kashmir to India and the formulation of Article 370. The arguments involve interpreting the historical context, the Instrument of Accession, and the evolution of the state's relationship with India. These historical aspects influence the legal interpretations and debates surrounding the abrogation of Article 370.


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