The history of the article 370 of the constitution of India dates back to 1948 when India got independence from the britishers. British India got divided into two parts Pakistan and India. At the time of independence more than 50 percent of the country was in direct control of Britishers and the rest were princely states governed by their respective rulers.
After independence, Nehru became Prime Minister and Vallabbhai patel became first Home minister of India and he was given the responsibility to integrate princely states into India.
There were a total of 565 princely states at the time of independence, Vallabhbhai Patel integrated almost every state. But few states like Travancore(Kerala), Bhopal, Jodhpur, Junagadh, Hyderabad, and Jammu and Kashmir were not ready to sign the Instrument of accession. However, Travancore, Bhopal and Jodhpur somehow got convinced and finally joined Dominion of India.
The Annexation Of Junagadh and Hyderabad
The story of accession of Junagadh is interesting, the majority population of Junagadh was Hindu but its ruler Nawab Mahabat Khanji III was a Muslim ruler. The population of Junagadh was in favour of joining India but the ruler wanted to join Pakistan. He also signed an agreement with Pakistan to become a part of it. But ultimately he understood that this is not possible and he decided to flee to Pakistan. Vallabhbhai Patel suggested a plebiscite to be conducted in Junagadh to ask the opinion of its pupils on whether they want to join India or Pakistan. He was sure that the result would come in India’s favour. On February 20th 1948 plebiscite was held and more than 99% of the population voted to join India.
This way Junagadh was made part of India.
The same problem was with Hyderabad’s nawab; he was a Muslim ruler who wanted to join Pakistan or at least remain independent. The problem was Hyderabad’s geographical location, as It was too far from both the parts of Pakistan. Patel knew that this is not sustainable because a separate country in the middle is dangerous for the security of India. India conducted an operation named Operation Polo to annex Hyderabad. The operation was held on 13 Sept to 18 Sept 1948. India emerged victorious and Hyderabad became part of India.
The Issue with Jammu & Kashmir
Out of three states Junagadh, Hyderabad, and Jammu and Kashmir. Jammu and Kashmir was only bordering state with pakistan and other two were not.
Jammu and kashmir shared its border with west Pakistan of that time and Pakistan was not in favour of letting go of this beautiful land at any cost.
The Jammu and Kashmir’s situation was opposite to that of Junagadh. Almost 70% of its population were muslim but its ruler was a Hindu- Raja hari Singh. He was a dogra ruler and did not want to be included in India or Pakistan either. He wanted to rule independently.
There is a tribe named Pashtun near to the border of Jammu and kashmir. Pakistan equipped them with required resources and told them to move towards Kashmir inside the territory of Jammu and Kashmir. At first, Raja Hari Singh did not take it seriously but later on he understood that the condition was serious and he seeked help from India. India said that the Indian army could not interfere until Jammu and Kashmir became Indian territory. Raja Hari Singh and the Indian government negotiated the terms and Hari Singh signed the Instrument of Accession on October 26, 1947. The instrument of accession that was signed by Kashmir and by other provinces were exactly the same and there was no difference in wordings.
On the very next day the Indian army started its operation in Kashmir and stopped the invaders.
Pakistan couldn’t accept this and the first indo-pak war had started and lasted till Jan 5th 1949. The UN had to intervene and ⅔ of Jammu and Kashmir was kept with India and ⅓ with Pakistan.
Nehru had already announced that after the situation in Jammu and Kashmir is settled, we will conduct a plebiscite to know the people’s preference on which country they want to join.
After the war had ended Sheikh Abdullah became a popular and forefront leader in kashmir.
It is said that Sheikh Abdullah was a good friend of Nehru so Nehru supported him.
During this period the constitution of India was in its making and to decide the issue of Jammu and Kashmir, 4 members of Jammu and Kashmir state including Sheikh Abdullah were made member of constituent assembly as representatives of Jammu and Kashmir state.
The Constituent Assembly of India drafted article 306(A) that later became Article 370. Article 370 gave Jammu and Kashmir to have its own constitution, flag, and autonomy on internal administration.
Original Text of Article 370
370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything contained in this Constitution—
(a) the provisions of article 238 shall not apply now 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 [1950 wording]: For the purpose 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 Maharaja’s Proclamation dated the fifth day of March 1948;
Explanation [1952 wording]: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat(now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.
(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 provision 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 (2) shall be necessary before the President issues such a notification.
What article 370 says?
Article 370(1) says Article 238 will not be applied to Jammu and Kashmir( now 238 is removed),only 3 matters will be under control of Indian Parliament that are Defence, External relation, and Communications, only 2 article ie. Article 1 and Article 370 of indian constitution will apply to Jammu and Kashmir, if parliament wants to apply any other article other than these two then it can only be done by consultation or concurrent
Article 370(2) Until constituent assembly of Jammu and Kashmir is made if Jammu and Kashmir’s government provide its concurrence to Indian government then such matter will be place before constituent assembly of Jammu and Kashmir for final verdict
Article 370(3) If article 370 has to be removed then it is only one way to do it when presidential order will be issued on recommendation of the constituent assembly of Jammu and Kashmir.