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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

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Mehbooba Mufti and Farooq Abdullah have been claiming that the moment these special statuses for Jammu and Kashmir are withdrawn, the state will automatically revert to its independent status prior to accession to India.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.

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