PREAMBLE OF INDIAN CONSTITUTION

Preamble Of Indian Constitution | Meaning | Short Notes

PREAMBLE OF INDIAN CONSTITUTION

WHAT YOU WILL LEARN about preamble of indian constitution

  • SHORT NOTE ON PREAMBLE OF INDIAN CONSTITUTION
  • NATURE OF PREAMBLE
  • OBJECTIVES OF PREAMBLE

WHAT IS PREAMBLE OF INDIAN CONSTITUTION SAYS – WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the 2[unity and integrity of the Nation];

IN OUR CONSTITUENT ASSEMBLY this Twenty-Sixth Day of

November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Constitutions all over the world generally have a Preamble. The form, content and length of the Preamble differ from constitution to constitution. Irrespective of these differences, the Preamble generally sets the ideals and goals which the makers of the constitution intend to achieve through that constitution.‘ Therefore, it is also regarded as ” ’a key to open the mind of the makers’ of the Constitution which may show the general purposes for which they made several provisions in the Constitution”. Therefore, the Preamble is a legitimate aid in the interpretation of the provisions of the Constitution. In this respect, subject to the clarification given below, the Preamble of the Constitution stands on the same footing as the Preamble of an Act.

The Significance “of preamble of indian constitution Act cannot control/ qualify or restrict the meaning and application of its enacting part, if that part is explicit and unambiguous. But if the enacting part is ambiguous, the Preamble can be used to explain and elucidate it In Powell v. Kempton Park Racecourse Co. Ltd., Lord Halsbury LC said: ‘

Two propositions are quite clear: one that a preamble may afford useful light as to What the statute intends to reach; and another, that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment.

Again in Attorney General V. HRH. Prince Ernest Augustus of Hanover“, Lord Normand for the House of Lords said:

If they [the enacting words] admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble of Indian Constitution , but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.

These propositions are, however, subject to the clarification that the Preamble to an Act is not part of the Act, because it is not enacted and adopted by the enacting body in the same manner as the enacting provisions. The Preamble of_ an Act is not introduced, discussed and passed in the enacting body-the legislature -1ike the enacted provisions sections -of the Act. The Preamble of our Constitution was, however, enacted and adopted by the same procedure as the rest of the Constitution. It was introduced and discussed in the Constituent Assembly and passed by it like the rest of the provisions of the Constitution. This difference was not brought to the notice of the Supreme Court in Berubari Union and Exchange of Enclaves re, where it observed that ”the preamble is not part of the Constitution“? Later when the constituent history of the Preamble was brought to the notice of the court in Kesavananda Bharati v. State of Kerala“, it held that ”constitution of India preamble was part of the Constitution and the observations to the contrary in Berubari Union case. were not correct”.The Indian constitution preamble is also part of the basic structure of the Constitution.

The recognition of the Preamble of Indian Constitution as an integral part of the Constitution makes the Preamble a valuable aid in the construction of the provisions of the Constitution because, unlike the Preamble to an Act, the Preamble to the Constitution occupies the same position as other enacting words or provisions of the Constitution. Therefore reference to Preamble 1n constitutional adjudication is quite frequent

NATURE OF PREAMBLE OF INDIAN CONSTITUTION

The framers of the Constitution of India had set out three broad purposes in the Preamble:

First, they sought to constitute India into a ”Sovereign Socialist Secular Democratic Republic”. India is a republic because the head of the State is elected and is not a hereditary monarch. It is democratic because the Constitution ensures the creation and existence of the government at the will of the people, through their participation in the formation of the government at regular intervals, on the principle of universal adult franchise.“ It is sovereign because it can make or unmake any decision with respect to itself without interference by any other country Her membership of the Commonwealth of the Nations is not inconsistent with her independent and sovereign status.

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OBJECTIVES OF PREAMBLE OF INDIAN CONSTITUTION

The words ”socialist” and ”secular” were added in the Preamble by the Constitution (42nd Amendment) Act, 1976. The addition of ”socialist” indicates the incorporation of the philosophy of ”socialism” in the Constitution, which aims at the elimination of inequality in income and status and standards of life, and may enable the courts to lean more and more in favour of nationalisation and State ownership of industry. After the adoption of the new economic policy in 1991 which is oriented towards free market and privatization, doubts were raised if that policy was consistent with socialism as envisaged in the Preamble. The Supreme Court has, however, upheld the privatisation of several enterprises without going into the question if that conflicts with the word ”socialist” in the Preamble. In some of the decisions, the Court has also used the word ”socialist” in the Preamble for evolving a concept of social democracy, which comes closer to the concept of social welfare state expressed as ”social Republic”, ”social state”, for example, in the Constitutions of France and Germany respectively. The word ”secular” recognises the concept of secularism as manifested in the guarantee of freedom of religion as a fuhdamental right in the Constitution. Thus, secularism was as much part of the Constitution even before the word ”secular” was inserted in the Preamble. Teaching of Sanskrit in schools, reservation of seats for Sangha in the Legislative Assembly of Sikkim, and acquisition of places of worship, including mosques, is not against secularism. Governments and political parties which lack religious tolerance, deny equal treatment to all religious groups and which fail to protect their life, property and places of worship run counter to secularism. Similarly, seeking votes at an election on the ground of religion is against secularism, while inter-religion or inter-caste marriages promote secularism. Secularism in India does not envisage a strict wall of separation between the State and religion as, for example, in the US. In India, it is susceptible to a positive meaning, that is, developing understanding and respect towards different religions. For more details on secularism and some other foregoing concepts also refer to Part II of Introduction to this book.

Although the original expression “Sovereign Democratic Republic” has been modified into ”Sovereign Socialist Secular Democratic Republic”, it remains as much a composite expression as before. Absence of any punctuation mark between different words of the expression supports this fact. It is further supported by its print in capital letters.

Second, they sought to secure to citizens of India justice social, economic, and politica1;liberty of thought, expression, faith, and worship; equality of status and opportunity; and to promote among the people of India, fraternity, assuring dignity of the individual and the unity and integrity of the nation. Although the expressions, ”justice”, ”liberty”, ”equality”, and ”fraternity” do not have fixed contents and may not be easy to define, they are not without contents or mere platitudes. They are given content by the enacting provisions of the Constitution, particularly by Part III, the Fundamental Rights; Part IV, the Directive Principles of State Policy; Part IV-A, the Fundamental Duties; and Part XVI, Special Provisions Relating to Certain Classes. Special attention has been drawn to the sequence of these values in the Preamble which establishes primacy of justice over freedom and equality and this is What the Constitution does by making special provisions for the weaker and excluded sections of society, women, children and minorities.”

Third, they made it clear that the Constitution emanates from ”We, the people Of India” and not from any external or lesser source. It is a conclusive assumption and a legal fiction which cannot be tested or questioned in any court.

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REFERENCE:

V.N SHUKLA ON CONSTITUTION OF INDIA

ARTICLE 29 OF INDIAN CONSTITUTION

Article 29 of Indian constitution

Article 29 of Indian constitution talks about Cultural and Educational Rights Protection of interests of minorities.

Any section of the citizens residing in the territory of India or any part thereof having a distinct _ language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

(Also read:  Section 125 or Domestic Violence act here )

Article 29 of Indian constitution CLAUSE (1) 



Article 29 of Indian constitution Clause (1)gives the right to every section of the citizens, which has a distinct language, script or culture, to conserve the same. If such sections of citizens desire to preserve their own language, script or culture, the State would not stand in their way. Perhaps residents of a State having different script, language or culture may also object to illegal migration from a neighbouring country resulting in adverse impact on the language, script or culture of that State.

 

A minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinct language, script or culture and that is what Article 30(1) confers on all minorities.  “Article 29 of Indian constitution” clause (1), neither controls the scope of Article 30(1) nor is controlled by that article. The scope of the two is different.

 

Article 29 of Indian constitution clause (1) is not confined to minorities but extends to all sections of citizens. Similarly Article 30(1) is not cont fined to those minorities which have a distinct language, script or culture but extends to all religious and linguistic minorities. Further, Article 30(1) gives only the right to establish and administer educational institutions of minorities choice while Article 29(1) gives a very general right to conserve the language, script or culture. Thus the right tinder Article 29(1) may be exercised without establishing educational institutions and the right under Article 30(1) need not be exercised for conserving language, script or culture.

In Iagdev Singh Sidhant v. Pratap Singh Daulta the appellant, who was declared elected to the House of the People, was alleged to have used corrupt practices to promote communal enmity between the Hindu and the Sikh communities prohibited by Section 123(3), Representation of People Act, 1951. Two instances were given by the respondent, a defeated sitting member, in support of his allegations:

 

  • that the appellant by taking help of the Hindi agitation, propagated that the respondent was an enemy of the Arya Samaj and the Hindi language, and

 

  • that the appellant used a religious symbol -a flag called ”Om thaj” -in his meetings. The High Court accepted the contention of the respondent and set aside the election of the appellant. But the Supreme Court unanimously allowed the appeal and set aside the judgment of the Punjab High Court. As to the first ground, Shah read clause

 

  • of Section 123 in the light of the fundamental right guaranteed in Article 29of the Constitution clause 1. He observed: Right to conserve the language of the citizens includes the right to agitate for the protection of the language. Political agitation for conservation of the language of a section of the citizens cannot therefore be regarded as a corrupt practice within the meaning of Section 123(3) of the Representation of the People Act. Unlike Article 19(1), Article 29 of Indian constitution clause 1 is not subject to any reasonable restrictions.The court also said that the right under Article 29 on Indian constitution clause 1 is absolute?

    Article 29 of Indian constitution CLAUSE (2) 


    Article 29 of Indian constitution Clause (2) relates to admission into educational institutions which are maintained or aided by State funds. No citizen shall be denied admission in such institutions on grounds only of religion, race, caste, language or any of them. It may be recalled that Article 15 also prohibits discrimination against citizens on grounds of reli’ gion, etc. But the scope of the two articles is different. Firstly, Article 15(1) protecté citizens only against the State while Article 29 of Indian Constitution clause (2) protects citizens against the State or anybody who denies the right conferred by it. Secondly, Article 15 protects citizens against discrimination generally but Article 29 of indian constitution clause (2) protects only against a particular species of discrimination namely, denial of admission into educational institutions maintained or aided by the State.

 

Finally, the specific grounds on which discrimination is prohibited are not the same in the two articles. ”Place of birth” and “sex” do not occur in Article 29(2), while ”language” is not mentioned in Article 15.

The Madras High Court held that the effect of omitting the word “sex” from Article 29 of Indian Constitution clause (2) is that the right of women to admission in educational institutions is a matter within the regulation of college authorities.35 It is doubtful if that interpretation is still valid. Read with Article 15(3), Article 29(2) may not be availed of by males for seeking admission in an exclusively female institution but its protection cannot be denied to female students in all men’s institution.

Article 29 of Indian constitution clause (2) is a special article and is a controlling provision when the question relates to admission to colleges? The right to admission into an educational institution is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens?7 Hence a school run by a minority, if it is aided by State funds, cannot refuse admission to children belonging to other communities.” In St. Stephen’s College v. University of Delhi (St. Stephen’s College), the court held that a minority community may reserve up to 50 per cent seats for the members of its own community in an educational institution established and administered by it even if the institution is getting aid from the State. Later a divided eleven-judge Bench in T.M.A. Pai Foundation v. State of Karnataka (T.M.A. Pai Foundation), while agreeing with the St. Stephen’s College case“, has relaxed the so per cent limit and has held that a reasonable percentage may be fixed by the State in which the minority institution is situated.

In the words of Kirpal CJ 
The best possible way is to hold that as long as the minority educational institution permits admission of citizens belonging to the non-minority class to a reasonable extent based upon merit, it will not be an infraction of Article 29 of Indian Constitution clause (2), even though the institution admits students of the minority group of its own choice for whom the institution was meant.

The State, however, cannot direct minority educational institutions to restrict admission to the members of their own community. A Bombay Government Circular Order directing the schools with English medium to admit only Anglo Indians and citizens of non-Asiatic descent in the classes taught in English language was held ultra vires, because the order denied to all pupils whose mother tongue was not English, admission into any school where the medium of instruction was English.

 

The order would not be valid even if the object for making it is the promotion or advancement of the national language.‘ The court said:

Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupils is not English. Adopting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of Article 29 of Indian Constitution clause (2) because the effect of the order involves infringement of this fundamental right, and that effect is brought about by denying admission only on the ground of language.

Article 29 of Indian Constitution” Clause (2), however, does not confer a legal right on the members belonging to other communities to freely profess, practise and propagate their religion within the precincts of a college run by a minority community. Article 29(2) cannot be invoked where refusal of admission to a student is on the ground of his not possessing requisite qualifications or where a student is expelled from an institution for acts of indiscipline.

To overcome court’s interpretation invalidating special provision for admission to weaker sections of the society“8 the Constitution (1st Amendment) Act, 1951, added clause (4) to Article 15 to the effect that nothing in Articles 15 and 29(2) shall prevent the State from making any special provision for the advancement of any SEBCs of citizens or for the SCs and STs. Accordingly, the State is now empowered to reserve seats in State colleges for any SEBCs of citizens or for the SCs and STs. To overcome similar interpretation“ the Constitution 93rd Amendment has introduced clause (5) in Article 15 which, however, has no reference to Article 29 of Indian Constitution clause (2).

While ordinarily educational institutions established in pursuance of Article 29 of Indian Constitution clause (1) or 30(1) are subject to Article 29(2), they are not so if they do not receive any aid from the State. Therefore, in the matter of admission they are free from the constraints of Article 29(2).

 

The unaided majority institutions do not stand in the same position as the unaided minority institutions. The latter are free to admit students exclusively from the minority community subject to the requirement of merit inter se, while the former may be subjected to any other reasonable restrictions in public interest. On further clarification in RA. Inamdar v. State of Maharashtra”, the court held that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution.

 

Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost.

ARTICLE 18 OF INDIAN CONSTITUTION

Article 18 of Indian constitution

Article 18 of Indian constitution talks about the abolition of titles.

(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

 

“Article 18 of Indian constitution” Clause (1) prohibits the conferment of titles. Military and academic distincttions are exempted from the prohibition. Clause (2) prohibits a citizen of India from accepting any title from a foreign State. Clause (3) provides that a now Citizen who holds any office of profit or trust under the State shall not accept, Without the consent of the President, any title from any foreign State. Clause (4) provides that no person -citizen or non-citizen -holding any office of profit or trust under the State, shall, without the consent of the President, accept any present or emolument or office of any kind from or under any foreign State.

The corresponding provision of the US Constitution reads as follows:

No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept any present, emolument, office or title of any kind whatever from any king, prince or foreign State.

It will be noted that this article does not, like Articles 17 and 23, provide that the breach of any obligation will be an offence punishable in accordance with law:

Therefore, it appears permissible to argue that it is the mere prescription or prohibition observable and enforceable by the persons and bodies concerned merely as a matter of political obligation to the democratic State under this article and not as an obligation entailing penal consequences for which punishments can be prescribed under Article 35.

The eminent constitutional lawyer, Sir Ivor Jennings, describing the nature of obligation created by Article 18 of the Indian constitution, observes:

The rule in ‘Article 18 of Indian constitution’ incorrectly summarised by the marginal note as abolition of titles, that no title, not being a military or academic distinction, shall be conferred by the State, is apparently part of a ’right to equality’. It seems to be no breach of the right to equality if Sri John Brown becomes Dr John Brown, or General John Brown, or Pandit John Brown, or Mr Justice Brown or Rotarian John Brown, or even Sri John Brown, M.B.E., or if he rolls around a gold plated car of loads his wife with jewellery and silk sarees; but if, like the present lecturer, he becomes an impecunious knight, the right to equality is broken. In whom is this right vested? It cannot be Sir John Brown; it is neither in rem nor in personam, neither corporeal nor incorporeal. It is in fact not a right at all, but a restriction on executive and legislative power.

Sir Ivor Jennings was looking at Article 18 of Indian constitution only in terms of jural relations. He did not realise the amount of cleavage and division that was created in the Indian Society by the conferment of titles on Indians by British rulers. The Constitution, as its Preamble states, wanted to rebuild a cohesive and integrated society by providing for equality of status. This is what Article 18 of Indian constitution does besides Article 17. 

In 1954, the Government of India introduced four awards namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri for exceptional and distinguished service in any field including public service. These awards were abolished in 1977 but were reinstated in 1980. Their validity was challenged in the court under Article 18 of Indian constitution on the ground of their inconsistency with that article. After perusing the constitutional history and the intent behind these awards the court came to the conclusion that they did not conflict with Article 18 of Indian Constitution because they did not amount to titles within the meaning of that article. It held that they could not be added as suffix or prefix to the names of the awardees and if so added they could be forfeited. The court also noted indiscriminate conferment of these awards without any clear guidelines. Therefore, it advised that a committee under the Prime Minister consisting among others of the Speaker of the Lok Sabha, the Chief Justice of India or his nominee and the leader of the opposition in consultation with the President of India should nominate persons for these awards.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Source:-

V.N Shukhla’s Constitution of India 12th Edition

Mahendra Pal Singh

Eastern Book Company

ARTICLE 25 OF INDIAN CONSTITUTION

Article 25 of Indian constitution

Article 25 of Indian constitution talks about Freedom of conscience and free profession, practice and propagation of religion.

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –

(a) regulating or restricting any economic, financial, political or other « secular activity which may be associated with religious practice;

(1:) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I. –The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II. -In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 25of Indian constitution should be read along with Article 26. While Article 25 of Indian constitution guarantees rights to an individual, Article 26 guarantees such rights to an organised body of individuals like the religious denominations or any section of them. Both these articles protect matters of religious doctrine or belief as’ well as acts done in pursuance of religion w rituals, Observances; ceremonies and modes of wors These articles embody the principles of religious tolerance that has been (me of the characteristic features of Indian civilization from the start of its history, the instances and periods when this feature was absent were merely temporary aberrations. They also emphasize the secular nature of Indian polity which the founding fathers considered to be the very basis of the Constitution.

The Constitution does not define “religion” anywhere, but the Supreme Court gave a comprehensive definition of religion Commr. Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt in the following words:

Religion is certainly a matter of faith with individuals or communities an it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept might prescribe rituals and observances‘ ceremonies and modes of worship which are regarded as internal part of religion, and these forms and observations might extend even to matters of food and dress.

Article 25 of Indian constitution CLAUSE 1- ARTICLE 25(1)

Article 25 of Indian constitution’ Clause (1) guarantees to every person, and not merely to the citizens of India, the freedom of conscience and the right freely to profess, practise and propagate religion. The right is subject in every case to public order, health and morality and other provisions of Part III. Further exceptions are engrafted upon this right by clause (2) of the article. Sub-clause (a) of clause (2) saves the power of the State to make laws regulating or restricting any economic, financial, political or secular activity which may be associated with religious practice and sub-clause (b) reserves the State’s power to make laws providing for social welfare and social reform even though they might interfere with religious practices.

Freedom of conscience connotes a person’s right to entertainment beliefs and doctrines concerning matters, which are regarded by him to be conducive to his spiritual well-being A person has freedom to believe in religious tenets of any sect or community. Article 25 of Indian constitution is more about custom and practices.

The right is not only to entertain such religious beliefs as may be approved by his judgment or conscience but also to exhibit his sentiments in overt acts as are enjoined by his religion. In the words of the article, he may “profess, practise and propagate his religion”. To profess a religion means the right to declare freely and openly one’s faith. He may freely practice his religion. “Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief’ 1n particular doctrines. Rituals and Observances, ceremonies and modes of worship considered by a religion to be its integral and essential part are also secured. What constitutes an integral and essential part of a religion or a religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practiced regarded by the community as part of its religion. Duties such as collection of offerings, assigned to the sevaks (servants), are not practice of religion. Therefore, any arrangement in the temple, such as placing of Hundis in different parts of the temple for making offerings by the devotees, which deprives the sevaks of the duty to collect offerings, does not amount to infringement of their right to practice religion.”

Again, a person may propagate freely his religious views for the edification of others. It is immaterial whether the propagation is made by a person in his individual capacity or on behalf of a Church or institution. The right to religion includes the right to seek declaration that the Church is episcopal.

Article 25 of Indian constitution Clause (2)(a
While the right to freely practise religion subject to the limitations of public order, health and morality is guaranteed, there is no such protection to activities which are economic, commercial or political in their character, though they are associated with religious practice. It may not always be easy to say if any particular matter falls under essential religious practice or is only a secular, commercial or political activity which has come to be associated with religion. A few cases from the US and Australian Constitutions may be cited to illustrate the difficulty. In Adelaide Co. v. Commonwealth, a company of ”Jehovah’s Witnesses” (a religious organisation) which, among other things, was opposed to all wars, in 1941 started proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth. Steps were taken against them under the National Security Regulations. The legality of government action was raised by means of a writ petition before the High Court of Australia. The High Court sustained the action of the government and held that the religious freedom was not in any way infringed by the National Security Regulations. This is an instance where political activities, though arising out of religious belief entertained by a. particular community, were considered not to be protected by the Constitution. In Minersville School, District v. Gobitis“1 two small children were expelled from the School of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The family to which the children belonged was affiliated with “Jehovah’s Witnesses” and they were taught to believe that saluting the flag was contrary to the injunction laid down in the holy scripture. The US Supreme Court was invited to decide if the requirement of participation in such a ceremony infringed the constitutional guarantee of religious liberty. It held that there was no infringement of the right to freedom of religion and it was within the competence of the legislature to adopt appropriate means to evoke and foster i sentiment of national unity amongst the children in public schools.

But very soon the court retracted from the view taken by it in the above case. in West Virginia State Board of Education v. Barneh‘e“, it held that the action of the State in making it compulsory for children in public schools to salute the national flag and pledge allegiance constituted a violation of the liberty of religion. This difference in judicial Opinion only emphasises the difficulty of reconciling the freedom of religious convictions honestly held by men with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organisation.

Our Supreme Klimt has warned against blind reliance on foreign precedents in determining what is and what is not religious practice.66 In Mohd. Hanif Quareshi v; State of Bihar‘”, the court had to determine whether the prohibition of cow slaughter violated the freedom of religion of the Mohammedans. The petitioners contended that the sacrifice of cow on the Bakrid day was enjoined by the Koran and, therefore, the practice was an integral part of the religion. The court after review of evidence, held that the practice was not an essential art of the Mohammedan religion and could, therefore, be re ulated under clause (2)(a) of Article 25 of Indian constitution. Payment of remuneration to the temple staff is secular activity associated with religion which can be regulated under Article 25 of Indian constitution (2)(a).

Article 25 of Indian constitution Clause (2)(b) 

Clause (2)(b) of Article 25 of Indian constitution deals with two exceptions: 1) laws providing for social welfare and social reform, and 2) the throwing open of all ”Hindu religious institutions of a public character” to ”all classes and sections of Hindus”.

As pointed out above, the right of religious freedom under clause (1) is subject to the power of the State to make laws for social welfare and social reform. The Bombay High Court held that an Act to prevent bigamous marriages was not violative of religious freedom since it fell under clause (:z)(b). Likewise, the provisions of the Hindu Marriage Act, 1956, are protected under sub-clause (b) of Article 25(2). Prohibition of evil practices such as sati or the system of devdasi could be justified under this clause. But the Bombay Prevention of Excommunication Act, 1949 which deprived the head of the Dawoodi Bohra community to excommunicate members of that community on religious grounds could not be saved under Article 25(2)(b .The court held that the phrase “law providing for social welfare and social reform” is not intended to cover the basic essentials of the creed of a religion which are protected by Article 25 of Indian constitution (1).

The second part of Article 25 of Indian constitution (2)(b) makes it clear that the right to freedom of religion would not prevent the State from throwing open all ”Hindu religious institutions of public character” to all ”classes and sections of Hindus”. Public institutions would include temples dedicated to the public as a whole and also those founded for the benefit of sections or denominations of people. ‘

The right conferred by Article 25 of Indian constitution (2)(b) is a right conferred on ”all classes and sections of Hindus” to enter into a public temple, and on the unqualified terms of that article, that right must be available, whether it is sought to be exercised against an individual under Article 25(1) or against a denomination under Article 26(b). The fact is that, though Article 25(1) deals with the rights of individuals, Article 25 of Indian constitution (2) is much wider in its contents and has reference to the rights of communities and controls Articles 25(1) and 26(b).

The right protected by Article 25 of Indian constitution (2)(b) is a right to enter into a temple for purposes of worship, and it should be construed liberally in favour of the public. But it does not follow from this that the right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Article 25(2)(b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services which the acharyas alone could perform.72 It is again a well-known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times the public in general are free to participate in the worship. Thus the right recognised by Article 25 of Indian constitution (2)(b) necessarily becomes subject to some limitations or regulations and such limitations or regulations arise in the process of harmonising the rights conferred by  “Article 25 of Indian constitution” (2)(b) with that protected by Article 26(b).73 The legislature could not invade the traditional and conventional manner in which the actual worship of the deity is allowed to be performed only by the authorised pujaris of the temple and by no other devotee entering the temple for darshan.

Exercise of religious freedom which does not fall within the exceptions of clause (1) or (2) of Article 25 of Indian constitution, cannot be restricted on any other extraneous considerations. Thus expulsion of three students belonging to the sect of Jehovah’s Witnesses from the school on the ground that they did not sing the National Anthem was invalidated because it did not fall within any of those exceptions. The exceptions can be enforced only with the authority of law and not otherwise.”

Explanation l to Article 25 of the Constitution recognises the rights of the followers of the Sikh religion to wear and carry on their persons kirpans as an emblem of their religion. Kirpan means a sword. But its size and shape has not been prescribed by the Sikh religion. It may, therefore, be a sword of any size or Shape. But a Sikh cannot carry any number of kirpans or swords. He is not allowed to possess an extra sword without licence.

Explanation II to ‘Article 25 of Indian constitution’ declares that the expression “Hindus” shall be construed as including persons professing the Sikh, Jaina or Buddhist religion. The explanation is only for the purposes of Article 25(2)(b) and for no other.“ Various statutes accord legislative recognition to the fact that even though Iains may not be Hindus by religion. they are to be governed by the same law: as Hindus and cannot claim to be a separate religious minority.”

ARTICLE 16 OF INDIAN CONSTITUTION

Article 16 of Indian Constitution

Article 16 of Indian Constitution  

Article 16 of Indian Constitution is another instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State. Explaining the relative scope of Articles 14, 15 and 16, Das Jsaid:

Article 14 guarantees the general right of equality; Arts. 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Art. 15 is more general than Article 16 of Indian Constitution, the latter being confined to matters relating to employment or appointment to any office under the State. It is also worthy of note that Art. 15 does not mention ’descent’ as one of the prohibited grounds of discrimination, whereas Art. 16 does.

This relationship has been further emphasised in Thomas and Indra Sawhney v. union of India discussed below and above under Article 15(4).

Article 16 of Indian Constitution clause 1 {16(1)}

“Article 16 of Indian Constitution’’ Clause (1) lays down the general rule that there shall be equal opportunity for citizens in matters relating to ”employment” or ”appointment to any office” under the State. It gives the right only for equal opportunity, i.e. the right to be considered for employment or appointment. It does not give the right to be employed are appointed to any office under the State. The rule applies only in respect of Employment or offices which are held under the State, ie. in respect of persons holding office as subordinate to the State. What is guaranteed is the equality of Opportunity. The clause accordingly, does not prevent the State from laying down the requisite qualifications for recruitment for government services, and it is open lo the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like all other employers, the government is also entitled to pick and choose from among a large number of candidates offering themselves for employment. long as an applicant, along with others, has been given his chance, it cannot be said that he did not have an equal opportunity along with others, who may have been selected in preference to him. While Article 16 of Indian Constitution clause (1) does not preclude an administrative authority from making a selection from numerous candidates offering themselves for employment, the selection test must not be arbitrary. If the selection test is not based upon some reasonable principle which has a nexus with efficient performance of the duties and obligations of the particular office, the rule of equal opportunity for employment under the State would be violated. The qualifications posited may, besides mental excellence, include physical fitness, sense of discipline, moral integrity and loyalty to the State. Technical qualifications and standards may be prescribed where they are necessary.

The expression ”matters relating to employment or appointment” must include all matters in relation to employment both prior and subsequent to the employment which are incidental to the employment and form part of the terms and conditions of such employment. Thus, the guarantee in clause (1) will cover: 1) initial appointments; 2) promotions; 3) termination of employment; and 4) matters relating to salary, periodical increments, leave, gratuity, pension, the age of superannuation, etc. Logically and going by numerous precedents determination of seniority must also fall within it. But a three-judge Bench of the court has held that ”Seniority is not a fundamental right”. Principle of equal pay for equal work is also covered by equality of opportunity in Article 16 of Indian Constitution.” The same fundamental principle of equality of opportunity should apply in all these matters between persons who are either seeking the same employment, or have obtained the same employment. ”Appointment” in clause (1) will include termination of removal from service. Arbitrary invocation of enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and Article 16 of Indian Constitution

Article 16 of Indian Constitution CLAUSE (1) is confined to ”employment” by the State and has reference to employment in service rather than as contractors. Accordingly, a contract for the supply of goods is not a contract of employment in the sense in which that word has been used in the article. Independent contractors cannot call themselves employees of the State and cannot claim the right conferred under this clause.

The requirement of reasonableness discussed under the expanding horizons of equality has been applied to Article 16 of Indian Constitution CLAUSE (1) also and unreasonable actions in rela~ tion to service matters have been invalidated.

Article 16 of Indian Constitution Clause 2 (article 16(2))

 

Article 16 of Indian Constitution Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated against each other in respect of any appointment or office under the State. The scope of clause (1) of Article 16 is wider than the scope of clause (2′ because discrimination on grounds other than those mentioned in clause (7-) 0f Article 16 has to be weighed and judged in the light of the’ general principles laid down in clause (1). The prohibited grounds of discrimination are religion’ race, caste, sex, descent, place of birth, residence, or any of them. The words, ”any employment or office under the State” make it clear that Article 16 of Indian Constitution clause (2) also applie. only to public employment. There is no constitutional Prohibition against Private persons or bodies employing people on grounds prohibited in Article 16 of Indian constitution (2). ‘

In Gazula Dasamtha Rama Rao V. State of AR , the Supreme Court invalidated Section 6(1), Madras Hereditary Village Offices Act, 1895 which had required the Collector to select persons from among the last holders of offices because it amounted to discrimination on the ground of descent. The office of the hereditary village munsif is an office under the State because the appointment is made by the Collector, emoluments are granted by the State, and the Collector has the power to remove, suspend, or dismiss him. In B. Venkatammana v. State of Madras“, reservation of posts in favour of Hindus, Muslims and Christians was held to be violative of Article 16 of Indian Constitution clause (2). Section 3, Andhra Pradesh Employment (Requirement as to Residence) Act, 1957 gave power to make rules in respect of certain classes of employment in certain areas. The rules prescribed the requirement of residence for appointment to certain posts within the Telangana area of the State. In A.V. S. Narasimha R110 v. State of AR, the petitioners, who were non-domicile persons appointed to the posts reserved for domiciles of Telangana and were by an order relieved from their posts and employed in other regions of the State, questioned the validity of the Act. The Supreme Court held that Section 3 of the Act insofar as it related to Telangana and the rules made thereunder (R. 3) were ultra Vires the Constitution. A circular of the State of Rajasthan assigning grace marks for the employment of primary school teachers on the ground of residence in the district and rural area was also invalidated. A district wise preparation of list of §elected teachers in Uttar Pradesh was also invalidated by the court. Difference }n the pay scales and promotional avenues between male and female employees 18 also prohibited by this provision. Provision for appointment of sons, (laughters or widow of a deceased employee on compassionate grounds is not violative 0f Article 16 of Indian Constitution clause (2) but its extension to near relatives is invalid under this provision.” In View of history of Sikkim and its special annexation to the Union of India, a provision for the appointment of the locals to services in that state has not been found inconsistent with Article 16 of Indian Constitution clause 2 Sexual harassment at workplace has also eld as gender discrimination? As we have noted above under Article 15(3), Special  provisions including reservations for  women in employment have been upheld by the court

Article 16 of Indian Constitution clause -3

Article 16 of Indian Constitution clause 13 Under this clause, Parliament is competent to regulate the extent to which it would be permissible for a State to depart from the law laid down in clause 3 . It is Parliament alone which can a prescribe such conditions, and that too in regard to State and not the Union appointments. In exercise of the power conferred by this clause, Parliament iii-3&7 passed the Public Employment (Requirement as to Residence) Act.” The Act repealed all the laws in force prescribing any requirement as to residence within a State or Union territory for any public employment In that State or Union territory. Whatever exceptions the Act initially made have also expired.

 

Source:-

V.N Shukhla’s Constitution of India 12th Edition

Mahendra Pal Singh

Eastern Book Company

ARTICLE 1 OF INDIAN CONSTITUTION

ARTICLE 1 OF INDIAN CONSTITUTION

ARTICLE 1 OF INDIAN CONSTITUTION

 

Article 1 of Indian constitution say about Name and territory of the Union. -(1) India, that is Bharat, shall be a Union of States. 

(2) The States and the territories thereof shall be as specified in the First Schedule] 

(3) The territory of India shall comprise –(a) the territories of the States; 

2[(b) the Union Territories specified in the First Schedule; and] (c) such other territories as may be acquired. 

The Republic of India is described as a union and not a federation. The Constitution makers had a purpose in choosing the word “Union”, in preference to ”Federation”. They were of  the View that the word ”Union” better expresses the fact that the Union of India is not the outcome of an agreement among the old provinces, with the result that it is not open to any State or a group of States to secede from the Union or to vary the boundary of their States on their own free will. The Chairman of the Drafting Committee, Dr Ambedkar, said.

He said about Article 1 of Indian constitution -But I can tell you why the Drafting Committee wanted to make it clear that though India was to be a federation, the Federation was not the result of an agreement by the States to join in a federation and that the Federation not being the result of an agreement no State has the right to secede from it. The Federation is a Union because it is indestructible. Though the country and the people can be divided into different States for convenience of administration the country is one integral whole, its people a single people living under a single imperium derived from a single source. The Americans had to wage civil war to establish that the States have no right to secession and that their Federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to Speculation
ARTICLE 1 OF INDIAN CONSTITUTION

 

Accordingly in  “Article 1 of Indian constitution’’ .India is declared as a Union of States, and the States and territories are specified in the First Schedule. None of the constituent units of the Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The Constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pat tern suitable to the genius and requirements of the Indian people as a whole.‘ The Constitution contemplates changes of the territorial limits of the constituent States and gives no guarantee of their territorial integrity.
ARTICLE 1 OF INDIAN CONSTITUTIONThe territory of India which is described in clause (3) falls under three categories: 1) State territories”, 2) Union territories, and 3) territories which may be acquired by the Government of India. No parliamentary legislation is required to acquire a foreign territory. It is an inherent attribute of a sovereign State to acquire new territories. Article 1(3)(c), therefore, in including the acquired territory as part of the Indian territory, merely states a factual situation and does not confer a power on Parliament to acquire foreign territory.

A territory can be said to have been acquired when the Indian Union acquires sovereignty over such territory. The expression ”acquired” should be taken to be a reference to ”acquisition”, as understood in public international law. If there Was any public notification, assertion or declaration by which the Government of India had declared or treated a territory as part and parcel of India, the courts Would be bound to recognise an ”acquisition” as having taken place, with the consequence that the territory would be part of the territory of the Union within Article 1 of Indian constitution Clause(3)(c). A statement of the Government of India that it did not consider a particular area to have been acquired by it, is binding on the court.

It matters not how the acquisition has been brought about. It may be by com Quest, it may be by cession following treaty, it may be by occupation of territory llitherto unoccupied by a recognised ruler, or it may be under the terms of an élgreement between two States,13 or it may be by accretion. After the commence~ Imerit of the Constitution, annexation of Sikkim, Goa, Daman and Diu, Dadra and Nagar Haveli and Pondicherry are examples of acquisition.

Acoording to Article 1 of Indian constitution No cession of Indian territory can take place without a constitutional amendment But settlement of boundary between India and any of its neighbouring countries about a disputed territory on the borders does not amount to cession of territory. An agreement to refer the dispute regarding boundary involves ascertainment and representation on the surface of the earth of a boundary line dividing two neighbouring countries. The very fact of referring such a dispute implies that the executive may do such acts as are necessary for permanently fixing the boundary.

A settlement of a boundary dispute cannot, therefore, be held to be a cession of territory. It contemplates a line of demarcation on the surface of the earth, It only seeks to reproduce a line, a suitable boundary, and it is so fixed. In such a case each contending State ex facie is uncertain of its own right and therefore, consents to the appointment of an arbitral machinery. Such a case is plainly distinguishable from a case of cession of territory known to be home territory. Similarly, a perpetual lease in favour of another country to use a part of Indian territory such as that of Teen Bigha in favour of Bangladesh does not amount to cession of Indian territory and therefore can be executed Without an amendment if the constitution.

Others Articles:-

Article 370 of Indian constitution

source:-

V.N Shukla’s CONSTITUTION OF INDIA.

MAHENDRA PAL SINGH

EASTERN BOOK COMPANY

MEMORANDUM AND ARTICLE OF ASSOCIATION

Memorandum and Articles of Association-Meaning,Relationship

Meaning and importance of memorandum and articles of association.

One of the first steps, in the formation of a company is to prepare a document called the “memorandum and articles of association. The memorandum of association of a company contains the fundamental conditions upon which alone the company has been incorporated. According to section 2(28) of the Companies Act, 1956 “Memoramdum” means memorandum of association of a company as originally framed or altered from time to time in pursuance of any previous companies law or of this Act”. This definition, however, does not state the nature of this document nor is indicative of its importance. According to Palmer, the memorandum of association is a document of great importance in relation to the proposed company. It contains the objects for which the company is formed and therefore identifies the possible scope of its operations beyond which its actions cannot go. It defines as well as confines the powers of the company. If anything is done beyond these powers, that will be ultra vires (beyond powers of) the company and so void. 

 

In the celebrated case of Ashbury Railway Carriage &Iron Co. Ltd v. Riche[1875] LR. 7 H.L. 653, Lord Cairns observed : “the memorandum of association of a company defines the limitation on the powers of the company. . . it contains in it both that which is affirmative and that which is negative. It states affirmatively the ambit and extent of vitality and power which by law are given to the corporation and it states, if it is necessary to state, negatively, that nothing shall be done beyond that ambit. . ” Thus, it serves two purposes. It enables shareholders, creditors and all those who deal with the company to know what its powers are and what is the range of its activities. An intending shareholder can find out the purposes for which his money is going to be used by the company and what risk he is taking in making the investment. Likewise, anyone dealing with the company, say, the supplier of goods or money, will know whether the transaction he intends to make with the company is within the objects of the company and not ultra vires its objects. 

 

Introduction to Article of asociation 

“memorandum and articles of association”, both are made at a same time

 The articles of association of a company are its bye~laws or rules and regulations that govern the management of its internal affairs and the conduct of its business. 

 

According to section 2(2) of the Companies Act, 1956 ‘articles’ means the articles of association of a company as originally framed or as altered from time to time in pursuance of any previous companies laws or of the present Act, ia, the Act of 1956’ 

 

The articles regulate the internal management of the company. They define the powers of its officers. They also establish a contract between the company and the members and between the members inter se. This contract governs the ordinary rights and obligations incidental to membership in the company. [Naresh Chandra Sanyal v. Calcutta Stock Exchange Association Ltd. AIR 1971 SC 422]. 

 

Articles are like the partnership deed in a partnership. They set out provisions for the manner in which the company is to be administered. In particular, they provide for matters like the making of calls; forfeiture of shares; directors’ qualifications, appo’ ment, powers and duties of auditors‘; procedure for transfer and transmis’ sio f shares and debentures. 

 

Memorandum and article of association Relationship

 

The articles regulate the manner in which the company’s affairs will be managed, The memorandum defines the company’s objects and various powers it possesses; the articles determine how those objects shall be achieved and those powers exercised. But the Companies Act, 1956, does not require the articles to provide for certain specified matters in the same way as it requires the memorandum to do. Consequently, the contents of the articles of different companies may vary substantially, and the utmost flexibility is allowed to the persons who R7111 the company to organise its management as they wish. 

 

The articles of a company are subordinate and controlled by the memorandum of association which is the dominant instrument and contains the general constitution of the company. The memorandum is fundamental and can be altered only under certain circumstances provided by the Act. But the articles are only internal regulations, over which the members of the company have full control and may alter them accordin g to what they think fit. Care has to be taken to see that regulations provided for in the articles do not exceed the powers of the company as laid down by its memorandum ~ Ashbury v. Watson [1885] 30 Ch. D 376 CA Articles going beyond the Memorandum are ultra vires Shyam Cha ndv. Calcutta Stock Exchange AIR 1947 Cal. 

 

Subject to the rule that the memorandum prevails in the event of a conflict, the memorandum and articles of association are contemporaneous documents, must be read together, and ambiguity or uncertainty in the one may be removed by reference to the other. Thus, where the memorandum was silent as to whether the company’s shares were to be all of one class or might be of different classes, it was held that a power given by the articles to issue shares of different classes resolved the uncertain‘ ty and enabled the company to do so. [He South Durham Brewery Company [1885] 31 Ch. D 26l]. Where the memorandum of a trading company empowered to do all things incidental to achieving the object, it was held that provision in the articles empowering the company to lend money merely exemplifies the general words of the memorandum, and the company was, therefore, entitled to lend money to its employees. [Rainford v. James Keith and Blackman Company Ltd. [1905] 2 Ch. 147]. Again. where the memorandum empowered the company to borrow on the security of its assets or credit and the articles provided that it might mortgage its uncalled capital, it was held that the articles merely made specific the general words of the memorandum so that the company could have power to mortgage its uncalled capital. [Re Pyle Works (No. 2) [1891] 1 Ch. 173].’ 

 

The “memorandum and article of association” can be read together only to remove an ambiguity or uncertainty. If the memorandum is perfectly clear, a doubt as to its meaning cannot be raised by reference to the articles; in such a case the articles are simply inconsistent with the memorandum and are disregarded. Thus, where the memorandum exhaustively defined the rights of preference shareholders, and the articles provided that on a winding up the company’s surplus assets, after paying all its debts and repaying share capital, should be distributed among all its shareholders, it was held that preference shareholders were not entitled to share any surplus assets; because their rights were to be ascertained from the memorandum alone, and the memorandum did not confer the right to participate on them [Duncan Gilmour & Co. Ltd, Re[l952] All. ER 871]. 

 REFERENCE:-

  1. TAX MAN BOOK ON COMPANY LAW

 MORE TOPICS:-

  1. ARTICLE 370 OF INDIAN CONSTITUTION
  2. SECTION 125 OF CRPC
  3. CODIFICATION OF LAW

 

 

ARTICLE 370 OF THE CONSTITUTION OF INDIA | Jammu and Kashmir

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.

ARTICLE 370 OF INDIAN CONSTITUTION

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.