Topic: History of Article 370

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 TABLE OF CONTENT

1. Abstract

2. Research Methodology

3. Introduction

4. Partition plan of 1947

5. Role of Sheikh Mohammad Abdullah

6. Role of Instrument of Accession

7. Article 370: Background and Provision

8. Why it is incorporated

9. Delhi Agreement of 1952

10. State Subject Law of 1927

11. Relation of state subject law of 1927 and Article 35A

12. Kashmir not only special state in India

13. Global picture

14. Main provisions of Article 35A

15. Conclusion

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 Abstract

Article 370 of the Indian Constitution which gives special autonomy for the state of Jammu and
Kashmir (J&K). This paper examines Article 370 and its history and how it has been very
important to India and its Constitution and the changing scenario article 35A from State Subject
Law of 1927, and what was the circumstances that Raja Hari Singh decides to made special
provisions for the state of Jammu and Kashmir. Situation which led to India signing Instrument
of Accession and not Merger agreement which other Princely States signs but Jammu and
Kashmir didn’t sign. And role of Mohammad Sheikh Abdullah who was also in favour of Jamu
and Kashmir becoming part of India. Majority of Kashmiri population was Muslim despite that
Mohammad Sheikh Abdullah wanted Jammu and Kashmir to merge with India and not Pakistan.
This paper will examine Article 370, a special status and its history along with other states which
have been given special in India.

Research Methodology

This paper depends upon strategy for study and research and dependent on the gathering and
investigation of information.

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 Introduction

Article 370 of the constitution of India has been hotly discussed by the Press and the public in
India in recent month. A strong section of public in India was demanding for abrogation of the
plea that the artificial distinction between Kashmir and the rest of the country.1

Partition plan of 1947:

There was more than 560 princely states in British India 2 and these were ruled by the prince of
that state, means these were not directly control by the British empire. The princely States
recognised the paramountancy of the British Crown. Partition plan was announced in 1947 and
these princely states were provided option either to join India or to join Pakistan or to be
independent as well. So some of the joined India, some of them join Pakistan except Jammu and
Kashmir.3 Because of its location, Kashmir could choose to join either India or Pakistan.
Maharaja Hari Singh, the ruler of Kashmir, was Hindu while most of his subjects were Muslim.
Unable to decide which nation Kashmir should join, Hari Singh chose to remain neutral. Before
the Partition of India in 1947, multiple Rajput and non-Rajput Princely States existed in India
which were not part of British India. These were the parts of the Indian subcontinent which had
not been conquered or annexed by the British but were subject to Subsidiary alliance.

Standstill Agreement:

Jammu and Kashmir was then ruled by Maharaja Hari Singh.4 And he had signed this agreement
with both India and Pakistan and made it clear that he is going to be distance from both India and
Pakistan, nor will he join India neither Pakistan.

He executed a standstill agreement with Pakistan, and requested India for time to consider an
agreement.

During this standstill, Pakistani raiders, with the support of the Pakistani Army, began advancing
on Kashmir in October 1947. A panicked Maharaja invited Indian forces into Kashmir to provide
temporary protection. Subsequently, the Maharaja executed an instrument of accession with
1
Virendar Grover, Federaion of India and states Reorganization: Reconstruction and Consolidation, 38 Vol, 4.,
Deep and Deep Publications, (1994).
2
Princely States, (Oct.7, 2019, 10:25AM), https://www.globalsecurity.org/military/world/india/princely-states.html.
3
Princely States of India A-Z., (Oct.7,2019, 10:25AM), https://www.worldstatesmen.org/India_princes_A-J.htm.l
4
Zaib Un Nisa Aziz, The Pursuit of Kashmir.(Oct, 7.2019, 10:48AM), https://herald.dawn.com/news/1153341

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India. Under the instrument, defence, external affairs, and communications were listed under the
exclusive domain of the central government. All other plenary powers would remain vested
within the state government.

India Independence Act of 1947:

Indian Independence Act was passed in 1947 and in one single stroke it ended the British rule
over India.5 Because of this Indian Independence Act6 the relationship between princely states
and British India also lapsed. So in August 1947 when India was born as a independent nation
then Jammu and Kashmir also became independent state.7

Role of Sheikh Mohammad Abdullah

When all this was happening mighty popular movement was taking shape in Jammu and
Kashmir and this was led by Sheikh Mohammad Abdullah, he wanted to finish the monarchy of
Maharaja Hari Singh to establish a democratic, socialist state of Jammu and Kashmir. He was
also in favour of Jammu and Kashmir becoming a part of India despite a fact that Jammu and
Kashmir was a predominantly a Muslim state. And Pakistan was not in favour of this movement
and attacked Jammu and Kashmir and by doing this Pakistan violated the standstill agreement
which he was signatory.

Role of Instrument of accession:

When Pakistan attacked Jammu and Kashmir Then Maharaja Hari Singh sought a help of
Government of India8. At that time Lord Mountbeton was Governer General of India and he said
unless and until exceed to the union of India, India will not help Jammu and Kashmir. Maharaja
Hari Singh delayed but sought help of Jammu and Kashmir, by signing the Instrument of
Accession with India on 26 October 1947 and became the part of India. When princely states
merges with India its losses all its individual identity and other princely states which signs

5
Samudranil, What was the Indian Independence Act of 1947?, (Oct. 7, 2019, 10:33AM), Jul, . 2018,
https://www.mapsofindia.com/my-india/government/what-was-the-indian-independence-act-of-1947#
6
1947 Indian Independence Act, (Oc,7. 2019, 10:44AM) https://www.parliament.uk/about/living-
heritage/evolutionofparliament/legislativescrutiny.
7
A Brief History of Kashmir Conflict,(Oct, 7.2019, 10:51AM), https://www.telegraph.co.uk/news/1399992/A-brief-
history-of-the-Kashmir-conflict.html.
8
Rahul Tripathi, Instrument of Accession:From 1947 to till date, (Oct,7. 2010, 11:02PM)
indiatimes.com/news/politics-and-nation/instrument-of-accession-from-1947-till-date.

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Instrument of Accession9 with India also signs merger Agreement but Jammu and Kashmir
didn’t sign this Agreement of Merger. Hari Singh appealed to the Indian government for military
assistance and fled to India. He signed the Instrument of Accession, ceding Kashmir to India on
October 26.

This Instrument of Accession was conditional.10 Maharaja Hari Singh made it clear that they will
transfer only three to power to the parliament of India including, defence, external affairs and
communication.11 On the 26 October Instrument of Accession was signed, and on 27 October
Indian Army landed in Jammu and Kashmir and war broke out between India and Pakistan. At
the same time PM Nehru approached to UN to end this war because this war was exceeded to
India. At the same time Nehru also persuaded Maharaja Hari Singh to give up his power and
transfer those power to Sheikh Mohammad Abdullah and he appointed PM of Jammu and
Kashmir.

At that time UN was controlled by USA and USA and Pakistan had a very close relation and UN
called for a ceasefire, war between India and Pakistan. And UNSC (United nation security
council) passed a resolution calling for a Plebiscite which is right to self- determination, UN said
all troops of India and Pakistan should go to their respective countries and let the people of
Jammu and Kashmir decide whether they want to go with India or Pakistan. Pakistan ignored the
UN mandate and continued fighting, holding on to the portion of Kashmir under its control. On
January 1, 1949, a ceasefire was agreed, with 65 per cent of the territory under Indian control and
the remainder with Pakistan. The ceasefire was intended to be temporary but the Line of Control
remains the de facto border between the two countries.

And at the same time India was drafting its own constitution.

Article 370: Background and Provision

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http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf
10
, Jammu and Kashmir Instrument of Accession explained: Article 370 linked to agreement signed between Hari
Singh and India,( Oct, 7. 2019, 11:09AM), (https://www.firstpost.com/india/jammu-and-kashmir-instrument-of-
accession-explained-article-370-linked-to-agreement-signed-between-hari-singh-and-india-6120001.html
11
Vijjayata Singh,J&K Special Status Home ministry pulls out original instrument of accession to support article
370 move, (Oct, 7. 2019, 11:13PM), https://www.thehindu.com/news/national/jammu-and-kashmir-ending-special-
status-is-legal-official/article28872189.ece.

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It says parliament of India will have the power to make laws only on those subjects which are
mentioned in the ‘instrument of accession’ which are defence, external affair and communication
and whenever the government of India will laws on these subjects the government of Jammu and
Kashmir shall be consulted.12

But by the presidential order provisions of Indian Constitution will be applicable to Jammu and
Kashmir as well.

But presidential order cannot be issued without the concurrence of the state of Jammu and
Kashmir and these decision of Jammu and Kashmir needs to be ratified by the constituent
assembly of Jammu and Kashmir.

In his speech Sheikh Abdullah said that they will have their own constituent assembly and their
own constituent assembly will decide their future relationship between India and Jammu and
Kashmir.13

Pandit Nehru welcomed his idea and said now nobody can tell us that we have acquired Jammu
and Kashmir through force, and they will have their own constitution and laws and Jammu and
Kashmir will become integral part of India.

That’s why Jammu and Kashmir constituent assembly formed and all this people belong to the
Jammu and Kashmir constituent assembly also belong to the Jammu and Kashmir national
conference headed by Sheikh Mohammad Abdullah.

Any amendment to the Indian constitution shall not apply to Jammu and Kashmir unless and
until Jammu and Kashmir agrees.14

Why it is incorporated ?

Maulana Masrat Mohani, asked in the constitutent assembly on October 17, 1949. “Why this
Discrimination?”15

12
K Venakataranan, Explainned, How the Status of Jammu and Kashmir is being changed, (Oct, 7.2019, 11:18PM),
https://www.thehindu.com/news/national/other-states/explained-how-the-status-of-jammu-and-kashmir-is-being-
changed/article28822866.ece.
13
https://parliamentofindia.nic.in/ls/lsdeb/ls10/ses4/2814079202.htm.
14
Sanjay Hegde and Pranjal Kishor,Why amendment to article 370 may not withstanding Judicial scrutiny, (Oct,7.
2019, 11:25AM), https://www.business-standard.com/author/search/keyword/pranjal-kishore.

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Gopalaswami Aiyyar answers:

Kashmir like other princely state was not yet ripe for integration. India had been at war with
Pakistan over Jammu and Kashmir while there was a ceasefire the condition were still ‘unusual
and abnormal’ and part of the state territory was in hands of ‘rebels and enemiest’.

Gopalswammyy also referred to something called ‘entangelement’

“Will of the people through the instrument of the constituent assembly will determine the
constitution of the state as well as sphere of union jurisdiction over the state.”

While Article 370 drafted then it made it clear that only two article of Indian constitution will
apply to state of Jammu and Kashmir and these are article 1 and article 37016.

Delhi Agreement of 1952

Delhi Agreement of 1952 is also known as Nehru- Seikh Talks which held between the
representatives of Kashmir Government and Indian Government.

"I say with all respect to our Constitution that it just does not matter what your Constitution says; if
the people of Kashmir do not want it, it will not go there. Because what is the alternative? The
alternative is compulsion and coercion...We have fought in good fight about Kashmir on the field of
battle... (and) ...in many a chancellery of the world and in the United Nations, but, above all, we
have fought this fight in the hearts and minds of men and women of that State of Jammu and
Kashmir."

- Nehru, speaking in the Lok Sabha in 1952.

The representative of Kashmir Government conferred with the representatives of Indian

government and arrived at an agreement in order to endorse the main decision of the constituent
assembly of the state of Jammu and Kashmir. This agreement was later known as the “Delhi
Agreement, 1952”.

15
Oct 17, 1949. Special status is born (Oct 7.2019, 11:29AM), https://www.hindustantimes.com/india-
news/october-17-1949-special-status-is-born/story-7jBc91VIBSW6icN7kTBG4L.html.
16
Jeet H Shroff, Four reason why Presidential is not on Kashmir is not Kosher, yet (Oct, 7. 2019, 11:35PM),
https://www.thehindubusinessline.com/opinion/three-reasons-why-the-presidential-order-on-kashmir-is-not-kosher-
yet/article28836245.ece.

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There was an agreement that the national flag of India will have same respect in Jammu and
Kashmir and as in other parts of India. And flag of Jammu and Kashmir will have its own Flag
and the status of flag will have the same status as of India. The head of the state will be called
Sadar-e- riyasat and Sadar- e- riyasat will be elected by the legislature of Jammu and Kashmir.
There will be a PM of Jammu and Kashmir and India as well, on all these things there were
agreement.17

Because of this agreement SC became applicable to the state of Jammu and Kashmir, various
provisions of the Indian Constitution were made applicable to the state of Jammu and Kashmir.

In 1952 "Delhi Agreement" was signed between the then Prime Minister of Jammu and Kashmir,
Sheikh Abdullah and the Prime Minister of India, Jawaharlal Nehru. The agreement extended
Indian citizenship to the 'State subjects' of Jammu and Kashmir. After the Delhi agitation of
1952, the famous  'Article 35A' was added to the Constitution in 1954.

State Subject law of 1927

There was also agreement on state subject law 1927 18 which was passed by Maharaja Hari Singh.
It was the policy of Dogra ruler Hari Singh to keep the Muslim away from government job in
Jammu and Kashmir and the beneficeries of this job were solely reserved for Kashmiri Pandit.

Then Kashmiri people feared that people from other state like Punjab can enter into Jammu and
Kashmir and buy property in Jammu and Kashmir, acquire land in Jammu and Kashmir and
become a part of Jammu and Kashmir government’s job. Then these Kashmiri Pandits fears and
petitioned Maharaja Hari Singh and ask him to make laws on these matters. So that no outsider
can buy property in Jammu and Kashmir, cannot acquire land in Jammu and Kashmir and cannot
get government job in Jammu and Kashmir and Maharaja Hari singh agreed and state subject law
was passed in 1927.

There was also a agreement that even Jammu and Kashmir became part of India but this State
Subject Law of 1927 will be there.19

17
Maj GeN Sheru Thapiyal, Article 370 The Untold story,(Oct, 7.2019, 11:52PM),
http://www.indiandefencereview.com/news/article-370-the-untold-story/.
18
https://www.satp.org/satporgtp/countries/india/states/jandk/documents/actsandordinances/State_Subject_Rules.htm
.

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When these talks were going on Kashmiri delegation asked the PM Nehru, That how can you
ensure that the state subject law will continue, because India was having Fundamental rights and
article 14 of the constitution which says there can be no discrimination among the citizen of
India. Then Pandit Nehru said don’t worry your law will prevail in your state.

And ultimately all these provisions were given shape and this lead to the Delhi Agreement of
1952.

At the same time Sheikh Abdullah was arrested and Bakshi Gulam Mohammad was placed in his
position and now government of India renegotiate this agreement with Bakshi Gulam
Mohammad. 20

Then a Presidential order was passed and in 1954 the presidential order was issued in Jammu and
Kashmir and this presidential order also introduced Article 35-A to the constitution of India.

Relation of state subject law of 1927 and Article 35-A

Article 35-A is the same subject law of 1927. This Article 35-A empowers the legislature of
Jammu and Kashmir that they can decide who are these permanent residence of Jammu and
Kashmir and when they are confer with these individuals, then they confer certain rights,
privilages, even if they violate Fundamental rights mentioned under constitution of India.

All those privilages;

No non residence can acquire property, buy property in Jammu and Kashmir, buy property in
Jammu and Kashmir.

No non residence of Jammu and Kashmir can get the government scholarship, government job,
in Jammu and Kashmir even if fundamental rights are violated.

Jammu and Kashmir was the only state to negotiate terms of its relationship with India.

19
Arvind Kurian Abraim, Revisiting Article 35A, Key to Kashmir Special Status and the Subject of raging debate,
( Oct, 7. 2019, 12:00PM), https://scroll.in/article/856013/revisiting-article-35a-key-to-kashmirs-special-status-and-
the-subject-of-a-raging-debate.
20
, Release of Sheikh Abdullah. - Disturbances in Srinagar and Jammu. - Report of Inquiry into Corruption Charges
against Bakshi Ghulam Mohammed.(Oct, 7.2019, 12:10PM),
http://web.stanford.edu/group/tomzgroup/pmwiki/uploads/1343-1968-05-KS-a-JZW.doc

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When the Presidential order was passed in 1956 the constituent assembly of Jammu and Kashmir
framed its own Constitution, and this constitution of Jammu and Kashmir says Jammu and
Kashmir is an integral part of India.

And when constituent assembly of Jammu and Kashmir drafted, framed and enacted its own
constitution this constituent assembly was abolished.

Kashmir: the only ‘special’state in India?21

No

 However, some experts believe that removing special status to Jammu and Kashmir is a
one-off case

 Special category status was granted in the past by the National Development Council on
the recommendations of the Planning Commission to states that needed special
consideration

Article 371 Special provision with respect to the States of Maharashtra and Gujarat.

Article 371A. Special provision with respect to the State of Nagaland.

Article 371B. Special provision with respect to the State of Assam.

Article 371C. Special provision with respect to the State of Manipur

Article 371D. Special provisions with respect to 1 [the State of Andhra Pradesh or the State of
Telangana

Article 371E. Establishment of Central University in Andhra Pradesh.

Article 371F. Special provisions with respect to the State of Sikkim.

Article 371G. Special provision with respect to the State of Mizoram

Article 371H. Special provision with respect to the State of Arunachal Pradesh.

21
Utpal Bhskar and Shaswati Das, Spotlight shifst to 10 Other state that have special category status, Oct, 7. 2019,
12:20PM), livemint.com.

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Article 371-I. Special provision with respect to the State of Goa.

Article 371J. Special provisions with respect to the State of Karnataka.

There is provision in Himachal Pradesh that no outsider can buy a agricultural land in the state.

Similar protections for unique status exist in tribal areas of India including those in Himachal
Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. 
The 1974 Indira-Sheikh accord between Sheikh Abdullah and then Prime Minister Indira Gandhi
stated, "The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall,
in its relation with the Union, continue to be governed by Article 370 of the Constitution of
India". 22

Global Picture

Britain has conferred “Special status” with substantial autonomy on Scotland and Wales not to
forget Northen Ireland.

Hong Kong was returned to China in 1997 under a handover agreement that guaranteed the
territory certain levels of autonomy and freedoms unseen on the mainland - and that "one
country, two systems" deal is at the centre of the row between London and Beijing.

Hong- Kong is a part of China, but it has its own judicial system.23

What is ‘one nation- two country’?

Hong Kong was ceded to Britain in perpetuity by China in the mid-1800s. But following lengthy
negotiations more than a century later, London and Beijing agreed on a deal that would see it
handed back to China.

A joint declaration was signed by then British Prime Minister Margaret Thatcher and Chinese
Premier Zhao Ziyang in 1984, under which Hong Kong would return to China in 1997 and
governed under a "one country, two systems" doctrine that would give it a special status for 50
years.

22
https://www.counterview.net/2019/05/sp ecial-status-not-exceptional
23
, Jeff LI, Hong- Kong, China Extradition Plan Explained, BBC Chinese, (Oct, 7. 2019, 12:36PM)
https://www.bbc.com/news/world-asia-china-47810723

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 Article 35A

Article 35A of the constitution provide Jammu and Kashmir Legislature a carte blanche to decide
who all are 'permanent residents' of the State and confer on them special rights and privileges in
public sector jobs, acquisition of property in the State, scholarships and other public aid and
welfare. It is mandatory according to the provision that no act of the legislature coming under it
can be challenged for violating the Constitution or any law of the land.

What were the main provisons of Article 35A?

1. A person who is not a Permanent Resident of Jammu and Kashmir can't own property there.
2. Resident of any other state of India cannot become a Permanent Resident of Jammu and
Kashmir and therefore cannot cast vote there.
3. It forbids Indian citizens from acquiring immovable properties and can't seek employment in
the state
4. If a girl of Jammu and Kashmir marries to a person who does not hold a permanent resident
certificate of J&K, then she would lose her property right and their children also become
ineligible to claim the property of their mother.
5. This article discriminates with the citizens of India because of the enforcement of this article
35A. As, the people of India are denied with the Permanent Resident certificate of Jammu and
Kashmir while the intruders from Pakistan were granted citizenship. Recently Rohingya Muslims
from Myanmar in Kashmir have been allowed to settle.
6. It conflicts with fundamental rights under Article 14, 19 and 21 of the Constitution.
7. Article 35A also adversely affects the economic development of the state.
8. Meritorious students are denied scholarships and they cannot even seek redress in any court of
law.
9. Also, the issues regarding refugees who migrated to J&K during Partition are still not treated
as "State subjects" under the Jammu and Kashmir Constitution.
10. Article 35A was inserted unconstitutionally, bypassing Article 368 which empowers only
Parliament to amend the Constitution.

The media has largely gone along with the explanation often portraying the debate as a question
of “special status of Jammu and Kashmir” and some article as some sort of unusual conclusion to
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the state. In fact, the fundamental purpose of article 35A when it was introduced in 1954 as a part
of presedential order, was the exact opposite: instead of giving the state a “special status” it was
designed to take autonomy away from it.
What presidential order of 1954 has done: Election commission, Comptroller and Auditor
General, Fundamental Right, Union Public Service Commission all are applicable to Jammu and
Kashmir. As recent GST is also applicable, means this Presidential order of 1954 has been
amended many time.24

One of the modification was replaced by CM and another that Jammu and Kashmir constituent
assembly does not have the power to amend the constitution of India.

Conclusion

Thus we can say that Article 370 wasn’t the only state which was given special status, there were
other state along with Jammu and Kashmir like, Himachal Pradesh, Nagaland, Assam, Sikkim,
Mizoram, Meghalaya was also there. Even section 147 of Jammu and Kashmir constitution
restricts the power of the Jammu and Kashmir legislative assembly in introducing any bill related
to article 370 of the Indian Constitution. Even after signing standstill agreement with Jammu
and Kashmir, Pakistan attacked Jammu and Kashmir and ultimetaly Raja Hari Singh signed
Instrument of Accession, but he signed that lately till the time Pakistan has already occupied the
part of Jammu and Kashmir, which is known as Pok (Pakistan occupied Kashmir) Condition in
Jammu and Kashmir became worst.

24
Dr Javed Iqbal, President’s Order 195, (Oct, 7. 2019, 1:20PM),
https://www.greaterkashmir.com/news/opinion/presidents-order-1954/.

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