Thursday, July 16, 2020
Home Fact-Check Fact Check: Does the effective repeal of Articles 370 and 35A nullify the Instrument...

Fact Check: Does the effective repeal of Articles 370 and 35A nullify the Instrument of Accession signed between JK Maharaja and India?

Although Article 370 gives special status to Jammu and Kashmir, it itself was under the Temporary and Transitional section of the original constitution

Also Read

OpIndia Staffhttps://www.opindia.com
Staff reporter at OpIndia

The Narendra Modi government today fulfilled one promise made in the manifesto for 2019 Lok Sabha elections by beginning the process of effectively scrapping the Articles 35A and 370 of the constitution, which gave special status to Jammu and Kashmir. The government also decided to make the Ladakh region a union territory, and downgrade the remaining part of the state to a union territory with a legislative assembly and government.

Since the time BJP had promised to scrap Articles 35A and 370, many politicians and journalists, especially Kashmir based politicians, have been claiming that the accession of the state was conditional upon these two constitutional provisions, and if these two Articles are abolished, the accession of Jammu and Kashmir itself would become null and void. Politicians like Mehbooba Mufti and Farooq Abdullah have been claiming that the moment these special statuses for Jammu and Kashmir are withdrawn, the state will automatically revert to its independent status prior to accession to India.

In a statement issued to media, former J&K CM Omar Abdullah said that Jammu and Kashmir’s accession was done on the basis of terms and conditions contained in the Articles 35A and 370. Former CM Mehbooba Mufti also tweeted the same, claiming now India will become an occupying force in the state.

But these claims are totally wrong and baseless, and the fact is that the accession of Jammu and Kashmir was never conditional on the two Articles of Indian constitution. The state, then ruled by Maharaja Hari Singh, had decided to join independent India in 1947. The princely state was included in the Dominion of India through the Instrument of Accession was executed by Maharaja Hari Singh on 26 October 1947. This document was signed under the provisions of the Indian Independence Act 1947, an act passed by the United Kingdom Parliament.

So, when the state had merged into India, the Constitution of India didn’t even exist, which means articles 35A and 370 also didn’t exist at that time. Article 370 was part of the original constitution that India had adopted on 26th January in 1950. This was part of Part XXI of the constitution, which is the Temporary and Transitional provisions. This means the article 370 was deemed to be a temporary provision from the beginning. Therefore, a temporary article can’t be the precondition of the accession of a state.

The article 35A, on the other hand, was inserted into the constitution later, in the year 1954.

On 14th May 1954, the president had issued the Constitution (Application To The State Of Jammu And Kashmir) Order 1954, superseding the earlier order issues in 1952. This 1954 order inserted the Article 35A into the constitution, giving the state the right to determine who is a permanent resident of the state.

It may be noted that although the Article 370 gives special status to Jammu and Kashmir, specifying which articles of Constitution apply to the state, it itself was under the Temporary and Transitional section of the original constitution adopted in 1950 itself. Neither of the Articles says that they are the preconditions of the accession of the state into India. Jammu and Kashmir had merged with India under the Instrument of Accession executed in 1947, and it is not depended on two constitutional provisions made in 1950 and 1954.

The Presidential order issued in 1950 had specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of Accession, as required by Article 370. The presidential order of 1952 had superseded the 1950 order, which had amended the article 370 and had abolished the monarchy in the state. Another Presidential order issues in 1954 ha superseded the 1952 order, which was a comprehensive order implementing the provisions of Delhi Agreement 1952. This had inserted Article 35A into the Constitution.

Now the government has issued another presidential order, the Constitution (Application To The State Of Jammu And Kashmir) Order 2019, which supersedes the 1954 order.

One important fact to be remembered is that as per Article 370, other than defence, foreign affairs and communication, the concurrence of state government was required for any application of constitutional power pf central government. And this concurrence of state government was to be ratified by the Constituent Assembly of Jammu and Kashmir. But the Constituent Assembly itself was dissolved in 1956, after the adoption of Jammu and Kashmir constitution, this means the authority of the state government to give concurrence to any central government had lapsed. But this provision was soon abandoned and central government orders were implemented with the concurrence of the state government instead of the constituent assembly. This was being done without making the required change in the constitution. Now the government has decided to correct this anomaly, and has replaced the constituent assembly with the legislative assembly.

  Support Us  

Whether NDTV or 'The Wire', they never have to worry about funds. In name of saving democracy, they get money from various sources. We need your support to fight them. Please contribute whatever you can afford

OpIndia Staffhttps://www.opindia.com
Staff reporter at OpIndia

Trending now

Curious Case of Mohan Nursing Home: Who killed Shahid and why was his body dumped anonymously by Muslims in front of a hospital

Chargesheet in Delhi riot case says that bullet that had hit Shahid could not have come from Hindu rioters as they too far away

Netizens outrage after Scotch-Brite says it will remove ‘regressive’ bindi in new logo

Karthik Srinivasan, who claims to be communications strategy consultant, recently took to LinkedIn to call out Scotch-Brite for their logo which stereotypes gender roles.

India to begin International flights to select countries via Air Bubbles till travel restrictions due to Coronavirus remain: Civil Aviation Minister

Unless international civil aviation returns to pre-covid state, air bubbles are the only answer, said civil aviation minister

Sushant Singh Rajput’s girlfriend Rhea Chakraborty requests home minister Amit Shah to hand over Sushant’s suicide case to CBI

After receiving death and rape threats, Rhea Chakraborty seeks CBI probe into her boyfriend Sushant Singh Rajput's death case

Congress governments over four decades kept changing rules to allot free Lutyens land to Rajiv Gandhi Foundation: Read details

A report by Times Now stated that ongoing high-level probe against the Gandhis-controlled Rajiv Gandhi Foundation has exposed a convenient arrangement that saw Gandhi family virtually taking over prime Lutyens land through various trusts including the RGF.

“Was attacked because I’m a Dalit”: Says social media user Madhur Singh who finds inaction of NCW against comedian Kenny Sebastian worrisome

Social media user Madhur Singh, popularly known as ThePlacardGuy has expressed concern that the lack of action of National Commission for Women against comedian Kenny Sebastian for obscene comments against his mother.

Recently Popular

The curious case of ‘Drone Boy’ who has made 600 drones using broken mixer grinders and televisions. A fact-check

While 'drone boy' Prathap NM has claimed to have made 600 drones using e-waste, not a single photo or video of them exist

Did you know Farooq Abdullah’s daughter Sara Abdullah had a rough time convincing her family for marrying ‘Hindu’ boy Sachin Pilot: Read details

Sara Abdullah had to suffer a lot of hardship to marry Sachin Pilot because her family did not want her to marry a 'Hindu' man.

At least 7 stand-up comedians deactivate or protect their Twitter accounts after netizens dredge up deplorable old tweets and videos

Unnerved by the possibility that they might be entrapped in a legal dispute, comedians deactivate/protect their Twitter account after users highlighted their reprehensible old tweets insulting Hindu Gods and Goddesses

Here is why #BabyPenguin is trending on Twitter, and why Aaditya Thackeray is called so by some

Yuva Sena registered complaint against twitter user for calling Aaditya Thackeray "Baby Penguin" and Uddhav Thackeray "Aurangzeb"

‘Drone boy’ Prathap NM makes a statement after OpIndia fact-check: Here is why his explanation makes little sense

'Drone boy' Prathap NM says he won't show his drones due to intellectual property issues, but will show certificates from unregistered events

AIB co-founder Rohan Joshi, who wanted entire Pawar family dead, deactivates his Twitter account

AIB co-founder Rohan Joshi has deactivated his account after screenshots of his abusive tweets against politicians went viral .

Bhima Koregaon case accused Varavara Rao tests positive for coronavirus, shifted to JJ hospital

Activist Varavara Rao tests positive for Coronavirus, shifted to JJ hospital from Taloja central jail

Police lodges FIR after AMU student receives threats from another student, told she will be forced to wear “brass hijab”

Police file FIR after AMU students threaten female student for saying girls in the University are forced to cover themselves up in hostels

Curious Case of Mohan Nursing Home: Who killed Shahid and why was his body dumped anonymously by Muslims in front of a hospital

Chargesheet in Delhi riot case says that bullet that had hit Shahid could not have come from Hindu rioters as they too far away

Fact-check: Did the Rs 263 crore Sattar Ghat bridge in Bihar collapse within 29 days of construction?

The barbs were not limited to the opposition parties. Some netizens also blamed Bihar govt for the Sattar Ghat Bridge collapse

Netizens outrage after Scotch-Brite says it will remove ‘regressive’ bindi in new logo

Karthik Srinivasan, who claims to be communications strategy consultant, recently took to LinkedIn to call out Scotch-Brite for their logo which stereotypes gender roles.

India to begin International flights to select countries via Air Bubbles till travel restrictions due to Coronavirus remain: Civil Aviation Minister

Unless international civil aviation returns to pre-covid state, air bubbles are the only answer, said civil aviation minister

Sachin Pilot & other rebel Congress MLAs approach Rajasthan HC against Speaker’s disqualification notice, court grants time to amend the plea

Earlier in the day, Congress had sacked Sachin Pilot as the state chief and removed him from the Deputy CM's post

Sushant Singh Rajput’s girlfriend Rhea Chakraborty requests home minister Amit Shah to hand over Sushant’s suicide case to CBI

After receiving death and rape threats, Rhea Chakraborty seeks CBI probe into her boyfriend Sushant Singh Rajput's death case

Maharashtra: NCP demands Rs.11,000 as ‘donation’ from aspirants to consider them for Gram Panchayat administrator posts

The NCP leaders in Pune have asked aspirants of the post to pay Rs 11,000 donation to the party to be eligible for the Panchayat Administrator post.

Congress governments over four decades kept changing rules to allot free Lutyens land to Rajiv Gandhi Foundation: Read details

A report by Times Now stated that ongoing high-level probe against the Gandhis-controlled Rajiv Gandhi Foundation has exposed a convenient arrangement that saw Gandhi family virtually taking over prime Lutyens land through various trusts including the RGF.

Connect with us

236,077FansLike
408,391FollowersFollow
275,000SubscribersSubscribe