ABSTRACT:
Not only in India, but around the world, Article 35 A and Article 370 of the Indian Constitution continue to be contentious. It granted autonomy to the State of Jammu and Kashmir in India, which has a federal structure and also has a unitary ethos.
Jammu & Kashmir became a hotbed of unrest as a result of this unequal distribution. The author of this essay strives to trace the origins and rationales for these clauses that finally resulted in the current threat, and does not confine herself to a full examination of Article 370, 35A, and its repercussions. Additionally, the paper seeks to unearth and illuminate the rationale for the criticized clauses, which have been mostly obscured by the ensuing mayhem. After recounting the history of Kashmir, the article brings the reader up to date with significant events in the Kashmir chronology.
It was necessary for the founding members of a democratic system of government to manage their interactions while also assuring the seamless operation of internal functions in the early stages of the system.
Inconsistency of practises, which developed into traditions, and subsequently into conventions, which would encapsulate the essence of constitutional principles, was viewed as a primary means of ensuring certainty in this process. Traditions and conventions were seen as a means of ensuring certainty in this process. As a result of conventions, the operation of each individual constitutional player was brought into compliance with constitutional principles, giving rise to the name "constitutional convention." According to the Indian Constitutional law framework, conventions with support from judicial precedent come into effect only where there is a gap in the provisions of the Constitution and do not supersede the Constitutional provisions. This contributes to the elements that influence the prevalence and validity of the norms in the first place.
The Indian Constitution grants the Parliament broad powers in relation to the country's territory, and the Supreme Court has affirmed the Parliament's authority to provide some transitional provisions to newly acquired areas under the Constitution. A thorough examination of the nature of constitutional conventions is provided in this study, which also considers how the Parliament has dealt with territory acquisition and retention in the past. This is applied to the case of Jammu and Kashmir in light of the abrogation of Article 370 in order to observe the transmission of sovereignty over the territory, the nature of the transitional provisions granted to the incoming territory, and the time limits associated with those transitional provisions. This work comes to a culmination in the appropriate nature of India's ambitions in obtaining and holding territory, through an Instrument of Accession, constituting a convention from the time of independence till the present.
KEYWORDS : Constitution, Conventions, Territory, Instrument of Accession, Abrogation, Article 370.
INTRODUCTION:
Article 370 of the constitution of India accords Jammu and Kashmir a unique status in terms of the implementation of legislation, excluding those pertaining to international, external, and defense affairs, property ownership, and citizenship rights.
It formed the ground for Jammu and Kashmir's admission to the Indian union at a time when former princely states were given the option of joining India or Pakistan following their independence from British control in 1947. The 1949 amendment exempts Jammu and Kashmir state from the Indian constitution. This Article precludes the State from enforcing even financial emergencies.[1] According to Article 370 of the Constitution of India, subject to Article 1, the state has the authority to have a separate constitution of its own and a flag and to prohibit outsiders certain property rights in the State, which means that the citizens of the State will be subject to rules, laws, and regulations which are distinct from those applicable in the whole of India.[2]
The relevance and importance of the said article is exemplified by the following sentences. On 26th of June and 7th of August, 1952, Jawaharlal Nehru stated in the Lok Sabha, "With all due respect to our Constitution, I say that it makes no difference what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because, in any case, what is the alternative? Compulsion and coercion are the alternatives... We have fought the good fight for Kashmir on the battlefield... (and)...in several foreign capitals and at the United Nations, but most importantly, we have fought this struggle in the hearts and minds of the men and women of the State of Jammu and Kashmir.
Because, ultimately - and I say this with the utmost respect for this Parliament - the choice will be made in the hearts and minds of the men and women of Kashmir, not in this Parliament, the United Nations, or anybody else." According to the United Front's minimum plan, "respecting Article 370 of the Constitution and the will of the people, the problems of Jammu and Kashmir shall be handled by granting that State's people the highest degree of autonomy." It was released on 5 June 1996.
The Indian Parliament has some limited authority to make laws in the State pursuant to this Article, which is limited to the items listed in the Union and Concurrent Lists of the VII Schedule that the “President of India declares correspond to the matters specified in the Instrument of Accession [Article 370(1)(b)(i)].”
And those legislation shall be enacted only after "consultation" with the incumbent State Government. Second, the Parliament may pass legislation with the "consent" of the current State Government on topics different from those declared by the President[3] and specified by the President in an order [Article 370(1)(b)(ii)].
While the State of Jammu & Kashmir has a constitution of its own, some articles and provisions of the Indian Constitution may be applicable to it, subject to certain “exceptions and modifications indicated in a Presidential order that may be implemented only after consultation with the State Government [Article 370(1)(d)].”[4]
The Article was included into the Constitution of India as a “temporary measure.” The Article is only temporary since the J&K Constituent Assembly was particularly empowered to finalize the connection between the State and the Union of India as per the constitution.
And any revisions, additions, or exceptions to Article 370 that may become necessary were subject to Assembly approval. Thus, the term 'temporary' does not imply that the Article may be unilaterally amended. Sheik Abdullah stated in the J&K Constituent Assembly, "I would like to emphasize that any suggestion of arbitrarily altering the basis of our relationship with India would not only violate the letter and spirit of the Constitution, but would also risk serious consequences for our State's harmonious association with India." The phrase 'temporary' has been employed in this context to reduce the complexity associated with amending the Indian Constitution whenever the need arises to repeal, alter, or expand the scope of Article 370 through an agreement.[5]
As per Article 370(3), the President has the power to declare, by public announcement, that the said article shall stop from being effective or shall remain effective with such exclusions and adjustments. However, the Constituent Assembly's recommendation "must be required." Since the Constituent Assembly ceased to function on November 17, 1956 and ceased to exist completely on January 26, 19577, "any alteration to Article 370 will need resort to Article 368 respecting Constitutional Amendment."[6]
However, under the “Constitution (Application to J&K) Order, 1950”, no change to the Constitution applies to J&K until it is extended there by a Presidential Order under Article 370(1), which again requires the "consent of or consultation with the State Government.
V.N. Shukla stated that the order would meet legal and political obstacles. The first legal challenge will originate in Kashmir. By repealing Article 370, the door is now open for an open Palestine-style independence fight within Kashmir," he explained. "As in the United States, India will face rising legal challenges and political resistance led by several prominent attorneys. These are likely to be heard by a Supreme Court constitutional bench.”
HISTORY OF THE CONSTITUTION OF JAMMU AND KASHMIR
Before we can appreciate the provision of Article 370, it's necessary to grasp its brief history. Following Partition in 1947, Maharaja Hari Singh Ji of J and K took a very long time in deciding whether to join India or Pak.
From October 15, 1947 until March 5, 1948, Mehr Chand Mahajan of the Indian National Congress served as Prime Minister. Pakistan invaded Jammu and Kashmir on October 20, 1947, following the Muslim Pashtun tribal men of Waziristan. Maharaja Hari Singh asked for military aid from the Indian government following the invasion. Government forces from Pakistan began providing assistance to Pashtun tribesmen on 23rd October, 1947.
In a letter to the Governor General dated 26 October 1947, the Maharaja Hari Singh of Jammu and Kashmir, sought to join the dominion of India on three grounds: foreign affairs, communications and defense.
All princely kingdoms were requested to send delegates for the formation of the Constituent Assembly of India, whose primary task was to take the responsibility of drafting a constitution for the entire country. Additionally, they were encouraged to establish constituent assemblies for their own nations. Whereas the majority of states failed to convene assemblies on schedule.[7]
Prior to the actual accession, an “instrument of Accession” was signed between Jammu & Kashmir and India. Among all the provisions in the “Instrument of Accession”, the following handful are particularly significant. Clause V declared that without the agreement of the State, the Instrument could not be amended.
"Nothing in this Instrument shall be interpreted to bind me in any way to adopt any future Constitution of India or to restrict my discretion in entering into agreements with the Government of India according to any such future Constitution," Clause VII said. “Kashmir was then ruled internally under the auspices of its own 1939 Constitution.” And Clause XVII said that "nothing in this Instrument impairs the continuation of my authority in and over this State,... or the legitimacy of any legislation in effect in this State at the time."
Thus, Jammu & Kashmir kept a majority of its autonomy, ceding just a few subjects to the Union government at the center while being an integral part of the Union of India. Thus, At this point, J & K held power over citizens' status and a jurisdictional monopoly over civil and criminal affairs.
Additionally, by declining to recognise India's future Constitution automatically, it cemented the concept that the State will continue to be ruled under its own constitutional framework. The Indian Constitution was responsible for upholding and regulating this dual system.
The Governor-General accepted the offer on 27 October 1947, subject to certain conditions. On October 30, 1947, Maharaja Hari Singh appointed Sheik Mohammed Abdullah as Emergency Administrator of the state of Jammu and Kashmir. Additionally, India reported the Jammu and Kashmir conflict to the United Nations Security Council on January 1, 1948. On March 5, 1948, an Interim Government was constituted, with the Sheik as Prime Minister.
And the Maharaja issued a proclamation establishing a responsible government consisting of a Council of Ministers led by the Prime Minister, tasked with the responsibility of establishing a Na