Legal History Project Final Sem. 1
Legal History Project Final Sem. 1
Legal History Project Final Sem. 1
Project in
LEGAL HISTORY
On
Submitted To
Submitted By
Abhinav Baranwal
Abhinav Sharde
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ACKNOWLEDGEMENT
This project is a subject of extensive research could not have been completed without a few
things. First of all, we would like to express our gratitude to our teachers MR. K APIL
SHARMA for helping and guiding us towards the completion of this project. We would also
like to thank the administration for the provision of best facilities without which the
completion of this project would have been impossible. We would also like to acknowledge
the constant support of our seniors who showed the right track. Lastly, we would like to thank
the almighty whose blessings helped us to complete this project.
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TABLE OF CONTENTS
ACKNOWLWDGEMENT…………………………………………….2
INTRODUCTION……………………………………………………...4-5
RESEARCH METHODOLOGY……………………………………..6
OBJECTIVE……………………………………………………………6
RESEARCH QUESTIONS……………………………………………6
SCOPE………………………………………………………………….6
LIMITATIONS…………………………………………………………6
HISTORICAL BACKGROUND…………………………………….7-9
PRE-INDEPENDENCE ERA……………………………………………………….7
TREATY OF ACCESSION…………………………………………………………8
EVOLUTION OF ARTICLE 370 AND DELHI AGREEMENT…………………..9
CONCLUSION………………………………………………………….18
BIBLIOGRAPHY………………………………………………………..19
INTRODUCTION
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The research project is mainly based on the History of ARTICLE 370 of the Indian
Constitution. First of all let us know something about this Article. Article 370 is the most
contentious provision of the constitution of India So Article 370 is a part of the PART 21
which deals with “Temporary, Transitional and Special provisions”, Article 370 is a
temporary provision granting special autonomous status to Jammu and Kashmir. This Article
has always been a subject of heated debate since the time Constitution came into full effect
from 26th January 1950.
The Constituent Assembly of Jammu and Kashmir drafted a constitution for that state whose
preamble states that "the people of the state of Jammu and Kashmir, having solemnly
resolved, in pursuance of the accession of the State to India" had given themselves that
Constitution the purpose of which was to further define the existing relationship of the state
with the Indian union.1 The origin of Article 370 can be traced back to the British Raj in
India. Before the Indian Partition, India was divided into two different sets of geographical
areas: provinces which constituted 60% of the land area of the subcontinent that was known
as British India and Princely States which constituted the rest 40% of the British India. Most
princely states accepted the proposal of Sardar Vallabhai Patel to accede to the Indian
province except some states of Hyderabad, Junagarah etc. . Jammu and Kashmir was one
such Princely State that was ruled by Maharaja Hari Singh Dogra that didn’t accept the
proposal. When India parted a major column of armed people from Pakistan invaded
Kashmir and almost captured Srinagar. Confronted with the chances of losing Kashmir to
Pakistan, Maharaja Hari Singh Ji decided to seek help from India. Sardar Patel told that India
could take action only if Kashmir acceded to India. Maharaja accepted the proposal and
signed the INSTRUMENT OF ACCESSION ON 26th October, 1947.
However, the accession was partly provisional. For example, CLAUSE 7 read that Maharaja
was not committed to accept the future constitution of India. Also CLAUSE 8 read that
nothing in this Instrument accepted the Sovereignty of Kashmir. India only had jurisdiction
over the subjects like DEFENCE, COMMUNICATION, EXTERNAL AFFAIRS and some
ancillary subjects like ELECTION AND JURISDICTION of court in these 3 matters. With
such an Instrument in hands India sent its Forces to Kashmir. Later Sheikh Abdullah who was
under the custody was released by Maharaja Hari Singh. Though Abdullah criticised the
Pakistani attack on Kashmir but asserted the sovereign right of people of Kashmir to decide
1
Sathe, S. (1990). Article 370: Constitutional Obligations and Compulsions. Economic and Political
Weekly, 25(17), 932-933. Retrieved from http://www.jstor.org/stable/4396216.
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their Future. But after a huge round of discourse and discussion the idea of separate Kashmir
was overruled. In 1949 Maharaja and Abdullah decided that Kashmir should remain a part of
India with maximum possible autonomy. Kashmir was granted a Special Status by India in
ARTICLE 306 A of the Draft Constitution. This special status was granted as per the
CLAUSE 7 of the Instrument of Accession. This ARTICLE 306A was enshrined as
ARTICLE 370 in the Constitution of India as a “Temporary Provision”.
RESEARCH METHODOLOGY
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The Research Methodology that is to be used in this project is the Doctrinal Methodology;
research undertaken is descriptive in nature with an analytical approach to the topic. Both
primary and secondary data has been used and examined in a holistic manner for the purpose
of the dissertation. The mode of citation followed by the researchers is OSCOLA style of
citation.
OBJECTIVES
1. To give detailed idea that under what circumstances the Article 370 came into
existence.
3. To examine the changes in the working of the State after the abrogation of the Article.
RESEARCH QUESTIONS
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A. HISTORICAL BACKGROUND
1. PRE-INDEPENDENCE ERA
The origin of Article 370 can be traced back to British Raj in India. Prior to the partition of
1947, India was divided in two different segments of geographical regions: provinces which
constituted 60% of the land area of the sub -continent known as British India and princely
states which constituted the rest 40% of British India. The 562 such princely states were ruled
by the Princes, Maharajas, Nawabs, Rajas and so on and ranged in size and population. They
contributed 100 million of the subcontinent’s total population of 400 million inhabitants at
the time of independence. British looked after the defence, foreign policy and
communications of these states. But the states were not directly ruled by the British and were
allowed governance in internal matters such as law and order, civil liberties, health, education
and economic development in return for which they each acknowledge British ‘paramountcy’
through individual treaties. The British gave an Indian State and its ruler protection against
neighbors and usurpers by stationing company troops in its capital under the control of a
British Resident. “Their citizens were not British subjects, like the other Indians, but ‘British
protected persons’. The case of Jammu and Kashmir was very telling in this context”. 2 The
British transferred the state forever to Maharaja Gulab Singh under treaty of Amritsar, for 75
lakhs in 1846, and fixed a nominal annual payment to protect his territories from external
enemies.
2
Prem Nath Bazar, Struggle for freedom in Kashmir, New Delhi 1954, pp 140-160.
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2.TREATY OF ACCESSION
“With the end of British Rule and India gaining independence on 15 August, 1947, Jammu
and Kashmir along with other princely states became independent as well.”3 In February,
1947, Government announced that independence would be given to British India, the plan
was to create two independent dominions of India and Pakistan based on the Hindu and
Muslim majority areas of the various provinces that constituted British India. The policy was
announced by the British Government’s with regard to Indian states. Neither the British
Government nor the cabinet mission made any suggestion regarding the future of the princely
States except that they would become legally independent. The prospect of all 562 Indian
States exercising their independence came under chaos over the dominions of India and
Pakistan since both competed to absorb these states. There was an agreement between J&K
with Pakistan and India that both will not attack J&K. While India kept its word and refrained
from attacking, J&K chose to remain independent when India and Pakistan gained their
independence on 15th and 14th August 1947, respectively. In spring, internal revolt begins in
the Poonch region against oppressive taxation under the recently imposed direct rule by the
Maharaja. In August, Maharaja’s forces fire upon demonstrations in favour of Kashmir
joining Pakistan, burn whole villages and massacre innocent people. Pakistan attacked
Kashmir on 6th October 1947 by “Azad Kashmir Forces” supported by Pakistan. Confronted
with the chance of losing Kashmir to Pakistan, Maharaja Hari Singh requested help from
India. Immediately VP Menon arrived in Srinagar and told the maharaja that India could take
actions only if Kashmir will acceded to India. Maharaja wanted to keep it independent but
reluctantly due to the grave situations created by Pakistani invaders, he acceded Jammu and
Kashmir to India. Thus, on October 26,1947, Maharaja Hari Singh signed Instrument of
Accession whereby only Defence, Communication and External Affairs were surrendered by
the state to the Dominion of India.
3
“Jammu and Kashmir Instrument of Accession Explained: Article 370 Linked to Agreement Signed between
Hari Singh and India” (Firstpost February 20, 2019) https://www.firstpost.com/india/jammu-and-kashmir-
instrument-of-accession-explained-article-370-linked-to-agreement-signed-between-hari-singh-and-india-
6120001.html. accessed August 23, 2019.
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3.EVOLUTION OF ARTICLE 370 AND DELHI AGREEMENT
By 1949, Sheik Abdullah and Maharaja Hari Singh decided that Kashmir should remain
united with India with maximum possible autonomy. Prime Minister Pandit Jawaharlal Nehru
made certain commitments in consideration of the accession made by Jammu and Kashmir.
He directed Sheikh Abdullah to consult Dr. B.R. Ambedkar to prepare an article to be
included in the constitution for the inclusion of Jammu and Kashmir. B.R. Ambedkar refused
to draft Article 370 as according to him was discriminating. Thus, Nehru directed N.
Gopalaswami Ayyangar to drove the inclusion of Article 370 to completion and finally
granted a special status to Jammu and Kashmir in Article 306A of the constitution that was
given under clause 7 of the instrument of accession. In 1952, Sheikh Abdullah signed Delhi
agreement with the Central Government on Centre-State relationships, providing for
autonomy of the State within India and of regions within the state.
1.The government of India agreed that the residuary power of Jammu and Kashmir would be
vested to the state itself.
2. As the President of India commands the same respect in the State as he does in other Units
of India, Articles 52 to 62 of the Constitution relating to him should be applicable to the
State. “It was further agreed that the power to grant reprieves, pardons and remission of
sentences etc; would also vest in the President of India.4”
3.The Union Government agreed that state should have its own flag as well as the Union flag
but the State flag would not be a rival of Union flag.
4. It was accepted that the people of Jammu and Kashmir were to have fundamental rights but
in view of the grave situation of the state the whole chapter could not be made applicable to
the state.
5.It was agreed that, for the time being, the Board of Judicial Advisers in the state would be
the highest judicial authority and the Supreme Court should have only appellant jurisdiction.
4
“TheDelhiAgreement,1952Satp.org”https://www.satp.org/satporgtp/countries/india/states/jandk/documents/pap
ers/delhi_agreement_1952.htm.
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B. WHAT IS ARICLE 370? AND ITS IMPLICATIONS.
“After the independence of India the 'Instrument of Accession' with the Indian Union was
signed by Maharaja Hari Singh on October 26, 1947 and the special status within the Indian
Union was given by the Parliament by the adoption of Article 306 on October 17, 1949 which
was later rescheduled as 370.”5 The Article 370 provides special status to northern state of
India Jammu and Kashmir. The special status accorded to the state in the article meant that its
people lived under a different set of law for example, they have a separate constitution and a
separate State flag along with a Union flag.” It is the first article of Part XXI of the
Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’.
Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly
had a right to modify/delete/retain it.”6 This special status delinks Jammu and Kashmir from
rest of the country, it is because of this Article that the Government of India cannot enforce
any law connected with the state without the approval of the State Government. Only
defense, external affairs and communications fall in the central list. It won’t be an
exaggeration if it is called constitutionally recognized separatism. On the basis of this ‘special
status’ all over the world raise volley of questions in front of the government of India.
As of recent developments, the president of India Shri Ram Nath Kovind issued a
constitutional order which revoked the historic Article of 370 and make all the provisions of
the Constitution applicable of Jammu and Kashmir. The Jammu and Kashmir Reorganisation
Bill was also passed in Lok Sabha and Rajya Sabha to divide the state in two different Union
Territories that will be called as Jammu and Kashmir and Ladakh.
5
JAMWAL, S. (1993). ARTICLE 370 - ITS GENESIS AND REACTIONS IN J&K STATE. Proceedings of
the Indian History Congress, 54, 467-471. Retrieved from http://www.jstor.org/stable/44143001.
6
Mustafa F, “Explained: What Are Articles 370 and 35A?” (The Indian Express August 6, 2019)
https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-
5610996/. accessed August 26, 2019.
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2.ITS IMPLICATIONS
* There is no state list in Jammu and Kashmir, the jurisdiction of the Parliament is restricted
to the matters given in the Union list and Concurrent list. In addition to this, the residuary
power of legislation belongs to State Legislature rather than to Parliament.
* Power to make laws on preventive detention is also vested on the Legislature of the state
and not on the Indian Parliament. So, no such laws made in India is applicable on the state.
* Power of Parliament under Article 3 does not extend to the Jammu and Kashmir. Any
international treaty or agreement affecting the disposition of any part of the state does not
affect it, until and unless its own state legislature rectifies it.
b) Emergency
Proclamation of emergency made by Parliament under Article 352 shall not have any affect
on the state without the consent of its Government. On the breakdown of Constitutional
machinery, Governor’s Rule is to be imposed. In addition to all of these implications, the
Union cannot impose financial emergency (Article 360) on the state.
c) Fundamental Rights
In addition to the fundamental rights enjoyed by the people of other states of India, some
special rights in connection with employment, acquisition of property and settlement have
been conferred on the residents of the states by their state’s constitution. Shockingly, Right to
property is a fundamental right rather than constitutional as in other states.
The whole Part 4 (Directive Principles of State Policy) and Part 4A (Fundamental Duties) of
the constitution is not applicable on the controversial state of Jammu and Kashmir.
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e) Amendment of the Constitution
Article 368 of Indian Constitution which is for amendment in Constitution is not applicable
on the Constitution of Jammu and Kashmir. The Jammu and Kashmir assembly by two-third
majority amend its own Constitution expect in those matters that are related to the
relationship of the state with the Union of India.
The High Court of Jammu and Kashmir has limited power when compared to the High
Courts of other states of India. It cannot declare any law unconstitutional. The High Court
cannot even issue writs under Article 226 except for the enforcement of Fundamental Rights.
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C. ISSUES AND CHALLENGES
Article 370 was introduced under Part 21 of the Indian Constitution i.e. Temporary and
Transitional Provisions, it is but still in existence. So who will decide what was actually
meant by the term Temporary and Transitional Provision.
“The terms of this Instrument of Accession can’t be changed by any amendment of the Actor
the Indian Independence Act, unless such amendments are accepted by me by and Instrument
supplement to this Instrument”.
Kashmiri locals do not consider themselves as a part of India. The best examples that can be
quoted for this situation is that Kashmiri Locals often ask people coming from different states
to Kashmir, if they have come from India. So we can conclude that the concept of UNITY IN
INTEGRITY, which is one of the best attributes of INDIA’S most cherished culture and
tradition is losing its meaning. This is a big threat to a Nation like India.
“Private industries do not establish because they cannot acquire own land. This leads to
unemployment in youths. This unemployment gives them enough time to take part in
activities like stone pelting and separatism movement.”7
7
Nanjappa V, “Article 370 Became a Fertiliser for Terrorism, Separatism in J&K”
(https://www.oneindia.comAugust 5, 2019) https://www.oneindia.com/india/article-370-became-a-fertiliser-for-
terrorism-separatism-in-jk-2929421.html. accessed August 26, 2019.
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As per the provisions of ARTICLE 370 people who are not the residents of Kashmir are not
allowed to invest in Kashmir, they can’t buy any property nor are they allowed to carry on
any business. Where rest of our country enjoys Right to Move Freely and carry on trade in
any part of India thereby developing India as a whole, Kashmir has always been lagging
behind due to the restrictions put by Article 370.
“As we have CAG, Lokpal, CBI to investigate corruption issues in other States of India,
Kashmir due to article 370 does not come under these anti corruption bodies. When
corruption is on its toll in India it becomes a very important issue of debate that since the top
most investigation bodies of India does not have its operation in Kashmir, is Kashmir totally
a corruption free State and does not need such authorities.”8
1. As we all know that Pakistan is a great threat to our country due to its deep
involvement in terrorist activities. Article 370 also gives Pakistani citizens
entitlement to Indian Citizenship, if a Pakistani man marries a Kashmiri girl. This
issue is very sensitive and it needs to be looked upon with great caution and care.
By doing this we are allowing and welcoming the terrorists to be our Son in Laws.
“Above everything, state’s unity, integrity & sovereignty is preponderant. For the
integrity of this country, it is needed to have a united country in terms of
administration. Hence, this article may be regarded as in juxtaposition of the notion
of unity & integrity of this great nation.”9
8
“ARTICLE 370: A CRTICAL ANALYSIS” http://jlsr.thelawbrigade.com/wp-
content/uploads/2016/02/adityajain.pdf. accessed August 26, 2019.
9
“What Are the Advantages and Disadvantages of the Article 370?” https://www.quora.com/What-are-the-
advantages-and-disadvantages-of-the-article-370. accessed August 23, 2019.
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Residents of Jammu and Kashmir have no access to the RIGHT TO INFORMATION and are
deprived of the procedure to file a complaint. RTI has always proved to be the most
important tool to fight corruption, but in its absence, Politicians in Jammu and Kashmir will
get a chance to escape from the accountability to the citizens and this is the basic reason why
these politicians are refusing to abrogate ARTICLE 370. “The J&K State Right to
Information Act, 2009 is in operation in the State for last 6 years. Prior to this Act the J&K
State had introduced the concept of transparency law in 2004 by passing relevant law.”10
8). Women from Kashmir ceases to be a state subject if she marries a non-Kashmiri man
thereby losing her state identity, and this is quite discriminatory as it doesn’t happen with the
women of other states as they have only one citizenship and this is the Citizenship of India.
In the state of Jammu and Kashmir ARTICLE 352 and ARTICLE 356 are not applicable.
Under ARTICLE 356 where President can declare his rule in any state of India, for Jammu
and Kashmir he has to first consult with the Governor of State who himself is appointed by
the President.
F. CURRENT CHANGES
10
Jammu & Kashmir Right to Information Act [2009] OJ L3.
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a) Actions Taken by Union Government
In recent interviews with TV channels, Prime Minister Narendra Modi expressed his
concerns about the weak economic scenario of Jammu and Kashmir which ends up harming
their interests as a whole. In the first few days of August, there were signs of something alien
in the state. Thousands of additional troops were deployed, a significant Hindu pilgrimage
was cancelled, common tourists were ordered to leave, telephone and internet services were
scrapped and regional political leaders were placed under house arrest.
In midst of this, many of us speculated that Article 35A of the Constitution might be
scrapped. But on 5 August 2019, Narendra Modi-led government took a historical decision
and stunned the whole nation by revoking the Article 370 of the Constitution that grants
special power to Jammu and Kashmir and making all the provisions of the Constitution
applicable to the state. Home Minister Amit Shah announced in the Rajya Sabha that the
President had issued a presidential order (C.O. 272) under Article 370, which supersedes the
1954 order. In addition to this, the Jammu and Kashmir Re- organization Act was passed
in both the houses of the Parliament, which bifurcated the state into two union territories to
be called as Jammu and Kashmir with a state legislature and Ladakh without state legislature.
The reorganization is scheduled to take place on 31 October 2019.
The Presidential order also added few clauses to Article 367 under "interpretations". The
phrase "Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers" will be
understood simply as the "Governor of the state". “The phrase "State government" shall mean
the Governor, while the term "Constituent Assembly" in the old documents would read the
"Legislative Assembly of the State"11
11
“Article 370” (Wikipedia June 24, 2017) https://en.wikipedia.org/wiki/Article_370.
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b) Changes After Abrogation of Article 370
The historic decision will bring in very significant changes in Jammu and Kashmir. Some of
the most important of them are as follows:-
* People from anywhere in the country, now, can buy property and reside permanently in the
state. This led to fear in mind of Kashmiris that their state’s demography will transform from
Muslim majority to Hindu majority.
* A separate Union Territory will be created for Jammu and Kashmir with Legislature and
for Ladakh without Legislature. A notification by Union Government says “The Ladakh
division has a large area but is sparsely populated with a very difficult terrain. There has been
a long-pending demand of people of Ladakh to give it a Union Territory status to enable them
to realise their aspiration”12
* Ram Nath Kovind promulgated constitution (Application to Jammu and Kashmir) Order
which states that the Indian Constitution will henceforth be applicable to the state.
* Abrogation of the article 370 will lead to demographic transformation in the state as it
would make possible for any citizen of India to buy properties in Jammu and Kashmir.
* Jammu and Kashmir assembly will no longer in a position to pass significant bills within
the state because now the balance of power has been shifted to the Union Government.
* Now residents of any other states of India can also bag a government job and companies
will not be forced to hire only locals. This will fecilitate investment flow in the state and will
definitely lead to enrichment, resource generation and job creation.
* The revoking of article 370 ends the old-age discrimination against women of J&K. Now if
a woman marries a person from outside the state then she will not be barred from any
property rights and the provision is also extended to the children of such women and they will
also have succession rights over the property
12
Online ET, “Article 370 and 35(A) Revoked: How It Would Change the Face of Kashmir” (The Economic
Times August5,2019)https://economictimes.indiatimes.com/news/politics-and-nation/article-370-and-35a-
revoked-how-it-would-change-the-face-of-kashmir/articleshow/70531959.cms.
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CONCLUSION
Through this project, the researchers want to conclude that even though the Article 370 of
Indian Constitution is one of the most controversial as well as a significant issue for the
whole nation. Introduction of this article made several changes in the modus operandi of
Jammu & Kashmir which left in alone from rest of the country.
The researchers have researched on the various stages through which the Article has passed
and few landmark cases which resulted in few changes in the Article.
In the last chapter of the project we have tried to throw some light on the recent
developments regarding the same and the reasons and consequences of the abrogation of
Article 370.
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BIBLIOGRAPHY
Prem Nath Bazar, Struggle for Freedom in Kashmir, New Delhi 1954
https://www.firstpost.com/india/jammu-and-kashmir-instrument-of-accession-explained-
article-370-linked-to-agreement-signed-between-hari-singh-and-india-6120001.html
https://en.wikipedia.org/wiki/Article_370
https://economictimes.indiatimes.com/news/politics-and-nation/article-370-and-35a-revoked-
how-it-would-change-the-face-of-kashmir/articleshow/70531959.cms
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