Article 370

Abstract

Article 370 deals exclusively with Jammu & Kashmir State that came under the administrative control of the Government of India after the country' 15-month war that Pakistan started in 1947 to seize sovereignty and is arguably the most controversial provision of the Constitution of India. x The origin of Article 370 can be traced back to British Raj in India. Prior to the partition of 1947, India was divided in two different sets of geographical regions: provinces which constituted 60% of the land area of the sub-continent known as British India and princely states which constituted the rest 40% of British India. x The 562 such princely states were ruled by the Princes, Maharajas, Nawabs, Rajas and so on and ranged in size and population. They contributed 100 million of the subcontinent' total population of 400 million inhabitants at the time of independence. British looked after the defence, foreign policy and communications of these states. But the states were not directly ruled by the British and were allowed governance in internal matters such as law and order, civil liberties, health, education and economic development in return for which they each acknowledged British "˜paramountcy"™ through individual treaties, The British gave an Indian State and its ruler protection against neighbors and usurpers by stationing company troops in its capital under the control of a British Resident. x Their citizens were not British subjects, like the other Indians, but "˜British protected persons"™. The troops were, of course, very much a two-wedged weapon: while they were protecting the prince, they were also keeping him in check, a privilege for which he was expected to pay. The case of Jammu & Kashmir was very telling in this context. 3 x The British transferred the State forever to Maharaja Gulab Singh under Treaty of Amritsar, for 75 lakhs in 1846, and fixed a nominal annual payment to protect his territories from external enemies. X In February, 1947, Government announced that independence would be given to British India, the plan was to create two independent dominions of India and Pakistan based on the Hindu and Muslim majority areas of the various provinces that constituted British India. The policy was announced by the British Government' with regard to Indian states. Political arrangements between the States on the one side and the British Crown and British India on the other were to be brought to an end under that policy. The rights surrendered by the States would revert to the States when the partition of India and Pakistan were created. The communal basis of division of British India would not affect the States at all thus, with the withdrawal of power, the princely States would become "˜independent"™. Neither the British Government nor the cabinet mission made any suggestion regarding the future of the princely States except that they would become legally independent. The prospect of all 562 Indian States exercising their independence came under chaos over the dominions of India and Pakistan since both competed to absorb these states. V. P. Menon proposed that the princely rulers should be persuaded to hand over just three functions of their States to the central government of India: defence, external relations and communications, the same functions which had been always exercised by the British government. x There was an agreement between J&K with Pakistan and India that both will not attack J&K. While India kept its word and refrained from attacking, J&K chose to remain independent when India and Pakistan gained their independence on 15th and 14th August 1947, respectively. In spring, internal revolt begins in the Poonch region against oppressive taxation under the recently imposed direct rule by the Maharaja; In August, Maharaja' forces fire upon demonstrations in favour of Kashmir joining Pakistan, burn whole villages and massacre innocent people; The people of Poonch evacuate their families and at least 60,000 refugees fleeing to Jammu by 13 September. The rebellion spreads to adjacent Mirpur and Muzaffarabad. The Poonch rebels declare an independent government of "Azad" Kashmir on 24 October Pakistan attacked Kashmir on 6th October 1947 by "Azad Kashmir Forces" supported by Pakistan. To save J&K, the then ruler of J&K Maharaja Hari Singh chose to accede J&K to India. 1947: The Maharaja of the State of Jammu and Kashmir signs the Instrument of Accession (IOA) on 26 October, acceding the 75% majority Muslim region to the Indian Union, following invasion by the tribesmen from Pakistan, according to the 1948 Indian White Paper; India accepts the accession, regarding it provisional until such time as the will of the people can be ascertained by a plebiscite, since Kashmir was recognized as a disputed territory. The instrument of accession was signed by the ruler of Jammu and Kashmir whereby only Defence, Communications and External Affairs were surrendered by the State to the Dominion of India. In October 1947, the then prime minister of India Pt. Jawahar Lal Nehru made certain commitments and in consideration of those the accession was made by the ruler in favors of India. Article 370 was then incorporated in the Constitution in the pursuance of those commitments. Article 370 gave J&K a greater measure of autonomy as compared to other states and the power of the Union of India is restricted in the state. The Indian Parliament would need the state government's concurrence for applying all other laws. 1947-1952: Sheikh Abdullah drifts from a position of endorsing accession to India in 1947 to insisting on the self-determination of Kashmiris in 1952. In July 1952, he signs Delhi Agreement with the Central government on Centre-State relationships, providing for autonomy of the State within India and of regions within the State; Article 370 is confirmed and the State is allowed to have its own flag. The domination of Kashmir Valley (which has a 95% Muslim majority and accounts for more than 50% of the total population of Indian J&K) and Abdullah' land reforms create discontent in Jammu and Ladakh; An agitation is launched in the Hindu-majority Jammu region against the Delhi Agreement and in favour of full accession with the Indian Union; the movement is withdrawn later, due to pressure from the Center; Secessionist sentiments in the Valley and communalism in Jammu feed each other. Asim Jaiswal"Article 370" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-2 | Issue-5 , August 2018, URL: http://www.ijtsrd.com/papers/ijtsrd17026.pdf http://www.ijtsrd.com/humanities-and-the-arts/other/17026/article-370/asim-jaiswal