Article 370 of the Indian constitution gave special status to the state of Jammu and Kashmir. The Kashmir part of the Jammu and Kashmir State is a long pending unresolved dispute with India, Pakistan and China since 1947. On 5th August 2019, the Government of India through Presidential order and passage of a resolution in the Parliament has revoked this Article 370 with its all clause.
This article 370 along with Article 35A, defined that the Jammu and Kashmir state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to resident of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in Jammu & Kashmir.
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History of Article 370 and Jammu & Kashmir
India was a country of various princely States including Jammu and Kashmir before the Independence. In the year 1947, after independence of India and Pakistan both the countries tried to merge the different states in their territory. Sardar Balabhbhai Patel, the then Home Minister of India merged around 500 princely states with India and this is the reason that Sardar Patel is also kwnon as “Unifier of India”. But the States of Jammu and Kashmir was remain un-resolved. Pakistan through its non-state actors or terrorist attacked the Jammu and Kashmir and captured a large area of the Kashmir. In the meantime, Raja Hari Singh seek help from the Indian Government and on his request, Government send troops to valley. But in return the Government of India asked Raja Hari Singh to sign Instrument of accession.
Raja Hari Singh singed the instrument of accession on 26th October 1947 and Indian forces moved to valley. The instrument of accession specified the following three subject on which J&K transfer its power to Government of India:
- Foreign affairs
- Defence
- Communications
In the March 1948, the head of the State i.e. Maharaja appointed an interim government in the state, with Sheikh Abdullah as prime minister. Later in July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370. The controversial provision was drafted by Sheikh Abdullah itself.
It is also important to mention here that during the war between Indian troops and Pakistani invaders, Indian troops pushed them back and almost freed the maximum part of Kashmir. India within few days may have freed the entire part of Kashmir but in the meantime Jawahar Lal Nehru approached to the United Nations to intervene in the matter. The UN passed the resolution and asked for plebiscite under peaceful conditions. However, it was never conducted.
What are the provisions of Article 370?
The Indian Parliament needs to take prior approval of the Jammu and Kashmir government for applying State laws except foreign affairs, defense matters, communication and finance.
The ownership of property, law of citizenship and fundamental rights of the J&K residents is different from the other State residents. Under this article 370, citizens from other states cannot buy their own property in Jammu & Kashmir State. The Central Government has no power to declare a financial emergency in the state under Article 370.
It is important to note that Article 370(1)(c) explicitly mentions that Article 1 of the Indian Constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it is Article 370 that binds the state of J&K to the Indian Union. Removing Article 370, which can be done by a Presidential Order, would render the state independent of India, unless new overriding laws are made.