Article 370 and the backstory on Jammu and Kashmir’s special status
Union home minister Amit Shah on Monday announced the government has scrapped Article 370 of the Constitution, removing a special status given to the state of Jammu and Kashmir almost 70 years ago.
October 26, 1947: The foundation for Article 370 stems from the Instrument of Accession (IOA) signed by the then ruler of Jammu and Kashmir, Raja Hari Singh. The document was part of the formal process by which all princely states in the country declared their consent to be included in the Union of India. In this case, however, J&K negotiated some conditions as part of its entry into India.
As per the IOA, the state gave Union of India the power to legislate only three aspects: external affairs, communications and defence.
October 17, 1949: Article 370 is incorporated in the Indian Constitution, exempting the state of Jammu and Kashmir from Constitution of India. This cements the terms spelt out in the IOA.
Specifically, it allowed J&K to:
*Have its own Constitution
*To have a say on legislation covering all issues except defence, foreign affairs and communications -- the three aspects that Raja Hari Singh consented to being subjected to Indian Constitution
This Article was meant to be “temporary” in nature, to be ratified by the State’s Constituent Assembly -- which would draw up the state’s Constitution and finalise the powers of the state and the Union.
Several Presidential Orders were issued during this period following discussions between the Constituent Assembly of the State and Government of India. The first one was a formal announcement of the applicability of Article 370, while the one that came into force on May 14, 1954 was seen as the most crucial:
*It extended Indian citizenship to J-K residents
*It accorded the fundamental rights from Indian Constitution to the people of J&K
*It extended the jurisdiction of the Supreme Court to the state
*It announced the adding of Article 35A to Constitution, which gave special privileges to permanent residents by laying down restrictions on the ability of people from outside to purchase immovable property, claim settlement or employment
November 17, 1956: The Constituent Assembly of J&K dissolved, without taking a decision on whether to scrap Article 370.
This left a situation where Article 370 was deemed to have retained a more permanent place in the Constitution, where it is classified under Part XXI that deals with ‘temporary, transitional and special provisions’.
Several court orders have since deemed the Article to be a permanent inclusion in Constitution since the Constituent Assembly did not take a decision on its extension. Legal experts and opposition leaders have maintained that Article 370 can be scrapped only with the consent of the State assembly and a Constitutional amendment.
At present, the state does not have an assembly since it was dissolved on November 22, 2018 – months after an alliance between the BJP and the PDP collapsed.