Article 370: A Constitutional Coup? | Important Acts and Laws for Judiciary Exams PDF Download

Abstract

• Indian constitution is recognized as one of the lengthiest and most efficient constitutions globally. The framers of the constitution demonstrated remarkable prudence given the vast diversity of a country like India. Article 370, in particular, has garnered significant attention in recent times due to the special status it grants to the state of Jammu and Kashmir.
• This essay delves into the intricate aspects of Article 370, exploring its legal justifications, the historical backdrop leading to its inception, and the controversies surrounding it. It aims to provide a comprehensive understanding of this pivotal article, covering its evolution from the historical perspective of Jammu and Kashmir to its current contentious status.

Historical Background

• The state of Jammu and Kashmir holds a unique position in the Indian constitutional framework, being accorded special status. The events surrounding the accession of Jammu and Kashmir to India in 1947 shed light on the complexities of the region's history and its significance in the broader context of Indo-Pak relations.
• In October 1947, Pakistan violated the standstill agreement by launching an invasion of Kashmir from the north with a well-equipped army. Faced with a grave threat, the ruler of Jammu and Kashmir, Hari Singh, sought military assistance from India. India offered help on the condition that Jammu and Kashmir accede to the Indian Union, leading to the signing of the Instrument of Accession on 26th October 1954 between Jawaharlal Nehru and Hari Singh.
• Subsequently, India took the matter to the United Nations, accusing Pakistan of aggression and seeking the removal of Pakistani forces from the region. The United Nations Commission for India and Pakistan (UNCIP) was formed in January 1948 to address the conflict. A ceasefire line was established through the Karachi Agreement in July 1949, evolving into the Line of Control (LOC) that delineates the disputed region between India and Pakistan.

Overview of Changes in Jammu and Kashmir

Historical Status of Jammu and Kashmir

• Jammu and Kashmir previously held a special status within the Indian Union.
• Article 370 of the Indian Constitution granted the state certain privileges.

Modi Government's Decision

• The Modi Government made a significant decision to revoke Article 370.
• Home Minister Amit Shah announced the scrapping of Article 370 through a presidential order.

Impact of the Decision

• Constitutional provisions will now apply unconditionally to Jammu and Kashmir.
• Jammu and Kashmir will no longer exist as a state.

Creation of Union Territories

• Two new Union Territories will be formed: one for Ladakh and one for Jammu and Kashmir.

Instrument of Accession

• Jammu and Kashmir relinquished only three subjects to the union: defense, external affairs, and communications. The people of Jammu and Kashmir were assured that they would draft their own constitution through their constituent assembly.
• Article 370 was included in Part XXI of the Constitution of India, providing special status to Jammu and Kashmir. It restricts the state's legislative power over defense, communication, external affairs, and currency.
• Article 35A, issued under Article 370 (1)(d), addresses the rights of permanent residents of Jammu and Kashmir.
• The recent actions regarding Article 370 have been criticized as a constitutional coup, challenging the foundational agreements that integrated Jammu and Kashmir with India.

Legality of the Moves

• Article 370 was a result of an agreement between the Union of India and Maharaja Hari Singh of Jammu and Kashmir in 1947, solidifying the state's position in India based on specific conditions.
• While some argue that Article 370 was temporary and could be revoked, A.G. Noorani suggests that the State Government's authority to consent to presidential orders was contingent upon the State's constituent assembly being active.
• Amit Shah's actions, including redefining the constituent assembly and converting Jammu and Kashmir into a union territory, raise questions about their constitutionality and the preservation of India's federal structure.

Political Aspect of Article 370

• The Modi government's decisions regarding Article 370 are unlikely to address the concerns of Kashmiri Pandits, as historical issues persist, and security challenges remain unmitigated.

Economic Aspect

• The lack of significant investment in Jammu and Kashmir's economy stems more from security concerns rather than restrictions on land purchase by outsiders.

India's Stance on Mediation

• India's decision to revoke Article 370 was purportedly aimed at preventing external mediation in Kashmir. However, the strength of India's stance against mediation should rely on its inherent capabilities rather than internal territorial arrangements.

Conclusion

• The impact of the Article 370 move on India's global standing is a crucial aspect to consider.
• Global reactions have been cautious, with Pakistan indicating its intention to leverage the issue at international platforms.
• China has openly opposed the move, particularly highlighting the creation of Ladakh as a Union Territory and questioning Ladakh's status within India.
• India's response to China's opposition has been firm, although unnecessary diplomatic tensions have been stirred.
• Current status of Article 370: The actions taken by the Modi-Shah duo are seen as unconstitutional, potentially leading to increased alienation and unrest in the Kashmir valley.
• Impact on Kashmir's economy: The developments are expected to further weaken the region's economic stability.