In this article, Abhishek Mishra from KIIT School Of Law Discusses About ARTICLE 370 0F THE INDIAN CONSTITUTION
Article 370 of the Constitution of India
First of all our Indian Laws are Codified Laws which mean it is in written form.
The History and Explanation of Article 370 i.e temporary provision with respect to the state of Jammu and Kashmir.
The Union of India a nation formed the union of 29 states and 7 union territories. Being a democratic country there should be one constitution for the whole India and there is one constitution except in case of Jammu and Kashmir, it has a constitution for the state also. It is possible because of article 370 of Indian constitution. Under art. 370 J & K enjoys special status because of certain commitments made by the government of India to the then Maharaja of J & K at the time of accession to India.
What is article 370 iAct in Jammu and Kashmir?
Like India Jammu and Kashmir also got its independence on 15th of August 1947. At that time Maharaja of Jammu and Kashmir Hari Singh did not want to join India or Pakistan. He rather wanted to exist as a free state. He wanted to sign a standstill document with India and Pakistan but because of multiple reasons that could not be signed.
In October 1947 many tribesmen supported by Pakistan army attacked frontier of Jammu and Kashmir and were fastly approaching Srinagar (capital of J&K). Seeing the situation getting out of hand maharaja sought help from India. for that, he duly signed the Instrument of Accession like all other states. The operative part of accession as follows:-
“Whereas the Indian Independence act 1947, provides that as from the fifteenth day of August 1947 there shall be set up an independent dominion known as India, and the government of India act 1935 shall with such omissions, additions, adaption and modification as the Governer-General may by order specify be applicable to the dominion of India.
And whereas the government of India act 1935 as adapted by the Governor-General provides that an Indian state may accede to the dominion of India by an Instrument of Accession executed by the ruler thereof.
Now, therefore, I Shiriman Indra Mahendra Rajarajeshwar Maharajadhiraj Sri Hari Singh Ji Jammu Kashmir Naresh Tatha Deshadhipathi Ruler of Jammu and Kashmir state in the exercise of my sovereignty in and over my said state do hereby execute this Instrument of Accession.
Article 370 in J&K
After this Indian army marched in and stopped Pakistani army from moving ahead but by then some parts of Jammu and Kashmir was captured by Pakistan which is still known as Pakistan occupied Kashmir.
The government of India accepted the Instrument of Accession subject to be approved by the people of Jammu and Kashmir. In 1957 the constituent assembly of Jammu and Kashmir approved this accession. Section 3 of the constitution of Jammu and Kashmir says that the state of Jammu and Kashmir is an integral part of the union of India but at the time of framing of Indian constitution the status of Jammu and Kashmir was different so Article 370 of Indian constitution was Inserted in Indian constitution empowering the President to issue the order.
Article 370 states-
Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution,
(a) the provisions of Article 238 of Indian Constitution shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;
(c) the provisions of Article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause ( 1 ) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause shall be necessary before the President issues such a notification
So the constitution clearly states the provision how the article 370 can be dissolved or removed from Jammu and Kashmir.