With the end of the British paramountcy, the State of Jammu and Kashmir (J&K) became independent on 15 August 1947. Initially its ruler, Maharaja Hari Singh, decided not to join India or Pakistan and thereby remain independent. On 20 October 1947, the Azad Kashmir Forces supported by the Pakistan army attacked the frontiers of the state. Under this unusual and extraordinary political circumstance, the ruler of the state decided to accede the state to India. Accordingly, the ‘Instrument of Accession of Jammu and Kashmir to India’ was signed by Pandit Jawaharlal Nehru and Maharaja Hari Singh on 26 October 19472 Under this, the state surrendered only three subjects (defence, external affairs and communications) to the Dominion of India. At that time, the Government of India made a commitment that ‘the people of this state, through their own Constituent Assembly, would determine theinternal Constitution of this state and the nature and extent of the jurisdiction of the Union of India over the state, and until the decision of the Constituent Assembly of the State, the Constitution of India could only provide an interim arrangement regarding the state.’3 In pursuance of this commitment, Article 370 was incorporated in the Constitution of India. It clearly states that the provisions with respect to the State of J&K are only temporary and not permanent. It became operative on 17 November 1952, with the following provisions:
1. The provisions of Article 238 (dealing with the administration of Part B states) is not applicable to the state of J&K. The state of J&K was specified in the category of Part B states in the original Constitution (1950). This Article in Part VII was subsequently omitted from the Constitution by the 7th Constitutional Amendment Act (1956) in the wake of the reorganisation of states.
2. The power of Parliament to make laws for the state is limited to: (a) Those matters in the Union List and the Concurrent List which correspond to matters specified in the state’s Instrument of Accession. These matters are to be declared by the president in consultation with the state government. The Instrument of Accession contained matters classified under four heads, namely, external affairs, defence, communications and ancilliary matters. (b) Such other matters in the Union List and the Concurrent List which are specified by the president with the concurrence of the state government. This means that laws can be made on these matters only with the consent of the State of J&K.
3. The provisions of Article 1 (declaring India as a Union of states and its territory) and this Article (that is, Article 370) are applicable to the State of J&K.
4. Besides above, the other provisions of the Constitution can be applied to the state with such exceptions and modifications as specified by the President in consultation with the state government or with the concurrence of the state government.
5. The President can declare that Article 370 ceases to be operative or operates with exceptions and modifications. However, this can be done by the President only on the recommendation of Constituent Assembly of the state.
Therefore, Article 370 makes Article 1 and Article 370 itself applicable to the State of J&K at once and authorises the president to extend other Articles to the state.