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India’s Kashmir Conundrum: Before and After the Abrogation of Article 370

By: Sameer P. Lalwani, Ph.D. ;  Gillian Gayner

Publication Type: Special Report

On August 5, 2019, the government of India revoked the constitutional autonomy of its Muslim-majority state of Jammu and Kashmir. This report—based on field interviews, new data collection, and extensive research— focuses on the revitalized insurgency and mass uprising between 2013 and 2019, explains how the Kashmir conflict evolved to a point that contributed to India’s extraordinary political gambit, and lays out both New Delhi’s strategy and the challenges the government faces going forward.

• Since 2013, mass resistance and armed insurgency have returned and grown in India’s Kashmir Valley, partly in response to the government’s failed strategy.
• Resistance has involved mass participation in “quasi-violence” that involves semi-organized pressure by unarmed civilians to provoke, frustrate, and impose costs on the state.
• New data on quasi-violence in the Kashmir Valley reveal substantial growth since 2013, at times even outpacing armed insurgency.
• New Delhi’s strategy fixated on kinetically degrading militant organizations to improve security, which fed local militant recruitment and depressed faith in democratic institutions.
• The government’s dramatic revocation of autonomy provisions for Jammu and Kashmir in 2019 minimized international penalties and preempted significant violent responses. Whether it replicates past political engineering or pursues revolutionary demographic engineering, the state is likely to face a resurgence of violent and quasi-violent resistance.
• U.S. influence is limited, but U.S. policymakers could encourage dialogue with all stakeholders and alert New Delhi to the challenges that Indian choices will pose for cooperation if it is indefinitely bogged down in Kashmir.

About the Report

This report focuses on India’s Muslim-majority state of Jammu and Kashmir in the wake of its revoked autonomy in early August 2019, how the evolving nature of the Kashmir conflict contributed to such a political gambit, and where the situation is headed. Supported by the Asia Center at the United States Institute of Peace, this report is based on extensive research, new data collection, and field interviews in the Kashmir Valley between 2012 and 2017.

About the Authors

Sameer P. Lalwani is a senior fellow and director of the South Asia Program at the Stimson Center, where he researches nuclear deterrence, interstate rivalry, crisis behavior, and counter/insurgency. Gillian Gayner was previously a research associate at the Stimson Center.

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All documents, written submissions of parties in Article 370 hearing before Supreme Court

A Constitution Bench of the Supreme Court of India on Wednesday commenced the final hearings in the challenge to the Central government's move to abrogate Article 370 of the Constitution which had given a special status to the erstwhile State of Jammu and Kashmir.

Home > Journal > Article 370 of the Constitution: A Timeline

Article 370 of the Constitution: A Timeline

Advay Vora | 31st Jul 2023

SCO tracks the evolution of Article 370 from 1947.

Maharaja Hari Singh Signs the Instrument of Accession

On October 26th, 1947, Maharaja Hari Singh, the last ruler of Jammu and Kashmir, signed the Instrument of Accession acceding to the Dominion of India. The Maharaja agreed to allow the Parliament to govern three subjects and limited the Union’s powers to Foreign Affairs, Defence and Communications.

Constitution of India Comes Into Force | January 26

On January 26th, 1950, the Constitution of India came into force. Article 370 set three broad frameworks. Broadly, Article 370 stipulated India would not make laws in Jammu & Kashmir outside the scope set out by the Instrument of Accession, without the ‘concurrence’ of its government. Further, it stated that except Article 1 , which declared India as a ‘Union of States’, and Article 370 itself, no part of the Constitution would apply to Jammu & Kashmir. The President of India could make any provisions of the Constitution to apply to this State with ‘modifications’ or ‘exceptions’, but required only in ‘consultation with the Government of the State’. Thirdly, Article 370 itself could not be amended or repealed—unless the Constituent Assembly of Jammu & Kashmir consented to it. 

The President Issues First Constitutional Order Under Article 370 | January 26

Subsequently, the President of India Rajendra Prasad issued his first order, the Constitution (Application to Jammu and Kashmir) Order, 1950 , under Article 370 , which specified the scope and full extent of the powers that the Parliament would exercise in Jammu and Kashmir. The Instrument of Accession had agreed that the Union would govern external affairs, communications and defence of the State. The President’s order listed the exact subjects that would fall within these categories. The Order also introduced Schedule II which listed the modified provisions of the Constitution that would apply to the State.

Constituent Assembly of Jammu and Kashmir is Formed

On October 31st, 1951, 75 members of the Jammu and Kashmir Constituent Assembly gathered for the first time on an autumn day in Srinagar. They belonged to the National Conference Party led by then Prime Minister of Jammu and Kashmir, Sheikh Abdullah. Their goal was to draft a Constitution for Jammu and Kashmir.

The Delhi Agreement is Formed

The Delhi Agreement, 1952, was between the Government of India and the Government of Jammu and Kashmir. The agreement concerned residuary powers ( Article 248 ) exercised by the Parliament that fell outside of the scope of the State or Concurrent Lists. The Delhi Agreement stated that such powers would be vested in the hands of the Government of Jammu and Kashmir. Typically, the Union parliament exercises all residuary powers in other states. The Delhi Agreement also extended some provisions of the Indian Constitution to the state, namely, fundamental rights, citizenship, trade and commerce, Union elections, and legislative powers. Prime Minister Sheikh Abdullah in the Constituent Assembly stated— ‘The Residuary powers vested in the Centre in respect of all States other than Jammu and Kashmir, in the case of our State, they are vested in the State itself. This position is compatible with Article 370 of the Indian Constitution and the Instrument of Accession on which the Article is based. We have always held that the ultimate source of sovereignty resides in the people. It is, therefore, from the people that all powers can flow’. Click below to read the Constituent Assembly Debates of Jammu and Kashmir. 

President issues the Constitutional Order of 1954, Implements Delhi Agreement

On May 14th, 1954, President Rajendra Prasad issued the Presidential order to implement the terms agreed to in the Delhi agreement of 1952  of the Indian Constitution. The presidential order guaranteed territorial integrity to Jammu and Kashmir and introduced Article 35A which conferred special rights to permanent citizens of Jammu and Kashmir. This order was passed with the concurrence of the Constituent Assembly of Jammu and Kashmir. 

Constitution of Jammu and Kashmir Comes Into Force

After a five year process, on January 26th, 1957, the Constitution of Jammu and Kashmir came into force with a declaration— ‘The State of Jammu and Kashmir is and shall be an integral part of the Union of India’. The day before that, on January 25th, 1957, having completed the task they were formed for, the Constituent Assembly of Jammu and Kashmir dissolved at 12:00 P.M. noon. The President of the Constituent Assembly, Hon’ble Gulam Mohammed Sadiq announced— ‘Today this historic session ends and with this the Constituent Assembly is dissolved’. The Constituent Assembly made no express recommendation to dilute Article 370.  Click below to read the Constituent Assembly Debates of Jammu and Kashmir. 

SC Holds that All Presidential Orders are Subject to the Approval of the Constituent Assembly

In Prem Nath Kaul v Union of India , the Supreme Court highlighted the significance of the ‘final decision of the Constituent Assembly’ of Jammu and Kashmir under Article 370(3). This provision mandates that a declaration by the President is subject to approval by the Constituent Assembly. The case involved the constitutionality of the Big Landed Estates Abolition Act, 1950, which was challenged by the petitioners on the grounds that the Maharaja of Jammu and Kashmir, who enacted the Act, lacked legislative powers to do so. The Supreme Court upheld the Act, ruling that the Maharaja indeed possessed legislative powers to pass it. 

SC holds that President Has Wide Powers to Amend Constitutional Provisions in Jammu and Kashmir

In Puranlal Lakhanpal v The President of India , a Presidential Order allowed Jammu and Kashmir to be represented in the Lok Sabha only through indirect elections, while other states had direct elections. The Order modified the application of Article 81 which pertains to the composition of the Lok Sabha to exclude Jammu and Kashmir. Petitioners challenged the Order contending that the President can only make ‘minor’ modifications to constitutional provisions. The Supreme Court upheld the Presidential Order, stating that the word ‘modification’ in Article 370 should be interpreted broadly to include even an amendment. The Court ruled that the term ‘modification’ should be given the ‘widest possible amplitude’ within the context of Article 370.

SC Holds that Article 370 is a Permanent Feature of the Constitution

In the case of Sampat Prakash v State of Jammu & Kashmir , the Supreme Court dealt with the constitutional validity of two Presidential Orders extending the application of Article 35(c) in Jammu & Kashmir. Article 35(c) was a special provision which provided immunity to preventive detention laws from fundamental rights claims in the state. The petitioners argued that Article 370 ceased to exist after the dissolution of the Constituent Assembly, and therefore, the President was no longer empowered to make orders under Article 370(1). The Supreme Court held that Article 370 would continue to exist even after the Assembly’s dissolution. This verdict implied that Article 370 had achieved permanent status in the Constitution, despite the absence of the Constituent Assembly.

SC Holds that the President Can Amend Interpretation of Certain Words Through Article 370

In the case of Maqbool Damnoo v State of Jammu & Kashmir , the President issued an Order to modify Article 367 , the interpretation clause of the Constitution, to change the meaning of ‘Sadar-i-Riyasat’ to ‘Governor’. The petitioners challenged this Order, arguing that it lacked the ‘recommendation’ of the Constituent Assembly, which had already dissolved. The Supreme Court upheld the validity of the Presidential Orders. The Court viewed the Amendment as a mere clarification since the office of the ‘Sadar-i-Riyasat’ no longer existed. According to the Court, the Governor had succeeded the ‘Sadar-i-Riyasat’ and was entitled to exercise all the powers previously vested in that office.

SC Holds: Article 370 will Cease to Operate Only After the Recommendation of the Constituent Assembly

In State Bank of India v Santosh Gupta , the Supreme Court addressed a challenge against the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 , a Union government legislation. The petitioners contended that this Act clashed with the Jammu and Kashmir Transfer of Property Act, 1920 — legislation specific to Jammu and Kashmir. The Supreme Court upheld the Union’s legislation. During the hearings, the Supreme Court observed that there was no definitive timeline mentioned for the operation of Article 370. The provision would continue to be in effect until a recommendation from the Constituent Assembly was made for its cessation. This judgement further bolstered the idea that the consent or concurrence of the Constituent Assembly of Jammu and Kashmir was crucial to repeal Article 370. 

Governor’s Rule in Jammu and Kashmir | June 20

The imposition of the Governor’s rule in Jammu and Kashmir occurred as a result of a political breakdown when the Bharatiya Janata Party (BJP) withdrew its support from the People’s Democratic Party (PDP). Under Article 92 of the Constitution of Jammu and Kashmir, the Governor’s rule cannot be extended beyond six months. Consequently, the Governor’s rule came to an end on December 19th, 2018.

Jammu and Kashmir under Presidents Rule | December 19

On December 19th, 2018, President Ram Nath Kovind issued a proclamation imposing President’s Rule in Jammu and Kashmir under Article 356 of the Constitution of India. This came at the heels of the Governor’s Rule imposed in June 2018. This proclamation was approved by both houses of the parliament in December 2018 and January 2019. The proclamation replaced the Legislative Assembly and Governor with the Union Parliament and the President.

Presidents Rule Extended by 6 Months | June 12

The President’s Rule over Jammu and Kashmir was expected to expire on July 2nd, 2019. The Union Cabinet extended this by six months, starting from July 3rd 2019. The decision to extend the President’s Rule was based on a report prepared by the Governor of Jammu and Kashmir, stating that the ‘prevailing situation in Jammu and Kashmir’ requires further continuation of the rule.

President Issues an Order Amending the Meaning of ‘Constituent Assembly’ | August 5

In a move resembling Maqbool Damnoo, President Ramnath Kovind issued an Order (C.O. 272) amending the interpretation of ‘Constituent Assembly’ under Article 370(3) to ‘Legislative Assembly’ by amending Article 367—the interpretation clause. Specifically, this meant that any presidential order would be subject to the approval of the ‘legislative assembly’. As Jammu and Kashmir was under President’s Rule, the need for the consent of the ‘legislative assembly’ was satisfied by the Parliament. Notably, the Constituent Assembly had been dissolved for over 60 years, and there was no functioning ‘legislative assembly’ due to the imposition of the Governor’s rule (June 2018) and subsequent President’s rule (December 2019). The Presidential order was issued a month after the President’s rule was extended for six more months (July 2019). 

The Rajya Sabha passed a statutory resolution which recommended the abrogation of Article 370, and the Jammu and Kashmir Reorganisation Act, 2019 .

Abrogation of Article 370 | August 6

The Lok Sabha passed the statutory resolution and the Reorganisation Act which was approved in the Rajya Sabha on the previous day. President Ramnath Kovind issued a subsequent Order (C.O. 273) rendering Article 370 redundant, thereby removing the special status granted to Jammu and Kashmir. The Order resulted in all provisions of Article 370 ceasing to operate, except clause 1. Clause 1 of Article 370 states that the Constitution of India will operate in the State of Jammu and Kashmir. 

Jammu and Kashmir is Bifurcated into Two Union Territories | August 9

The Union Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, which split the state of Jammu and Kashmir into two Union territories—Jammu and Kashmir, and Ladakh. It was decided that the Union Territory of Jammu and Kashmir would have a legislative assembly, meanwhile, Ladakh will not. Union Home Minister Amit Shah stated  that the reorganisation will boost tourism, development, and industries in the Union territory.   

Constitutionality of the Presidential Order is Referred to a 5-Judge Bench | August 28

A 3-Judge Bench led by former Chief Justice Ranjan Gogoi , along with former Chief Justice S.A. Bobde and Justice Abdul Nazeer , commenced hearing arguments on the Constitutionality of the Order. Following two days of arguments, the Bench deemed it essential to refer the matter to a Constitution Bench for further consideration. Click below to see a copy of the reference order.

Supreme Court Refuses to Refer the Matter to a Larger Constitution Bench

In Shah Faesal v Union of India , a 5-Judge Bench led by former Chief Justice N.V. Ramana , with Justices S.K. Kaul , R. Subhash Reddy , B.R. Gavai and Surya Kant refused to refer the case to a larger bench. The petitioners stated that there exists a conflict between the rulings in Prem Nath Kaul, Sampat Prakash and Maqbool Damnoo . They argued that Prem Nath Kaul established the requirement for the Constituent Assembly’s approval before the President could exercise his powers, and once the Constituent Assembly dissolved, so did the President’s powers. The subsequent decisions in Sampat Prakash and Maqbool Damnoo directly contradicted the Prem Nath judgement by upholding the validity of Presidential orders even after the Constituent Assembly had dissolved. The petitioners argued that the direct conflict between the rulings called for a reference to a larger Constitution bench. The Bench rejected these arguments, asserting that there was a fundamental difference in the circumstances of Prem Nath and Sampat Prakash . The Supreme Court emphasised that Prem Nath Kaul did not address the question of the continued relevance of Article 370 after the dissolution of the Constituent Assembly, which makes it distinguishable from the subsequent cases. Read SCO’s judgement summary below . 

Article 370 is Listed Before a New 5-Judge Bench | July 3

On July 3rd, 2023, the Supreme Court assigned the Challenge to the Abrogation of Article 370 to a new Constitution Bench, headed by Chief Justice D.Y. Chandrachud , along with Justices S.K. Kaul, Sanjiv Khanna , B.R. Gavai, and Surya Kant. They are also the five senior-most judges of the Supreme Court. The single-page notification indicated that the new Constitution Bench will take up the matter for further directions on July 11th, 2023. The new Bench saw the replacement of former Chief Justice N.V. Ramana and Justice Subhas Reddy with Chief Justice Chandrachud and Justice Sanjiv Khanna. Click below to see a copy of the listing notice.  

Constitution Bench to Start Hearing the Challenge from August 2nd 2023 | July 11

Lawyers representing the petitioners and the Union government gathered inside Courtroom 1, the CJI’s Court, at 10:30 AM to discuss the roadmap of the challenge. The Bench led by the CJI stated that the hearings will commence on August 2nd, 2023, almost four years after the Presidential Order which stripped Jammu and Kashmir of its special status. The case saw a new cause title— ‘In re: Article 370 of the Constitution’ , as the lead petitioner withdrew the case . The Supreme Court will hear 22 petitions challenging the Abrogation of Article 370. Click below to see a copy of the Order.

Constitution Bench Reserves Judgement | 5 September

On 5 September 2023, the Constitution Bench reserved judgement after 16 days and 60+ hours of hearings. Senior Advocate Kapil Sibal argued for the longest time for 14 hours, followed by Solicitor General Tushar Mehta who argued for 11 hours. Only three of the advocates on either side were from Kashmir. Key issues discussed included Kashmir’s internal sovereignty, the scope of the powers of the President during the President’s Rule, and the legitimacy of the Constituent Assembly of Jammu and Kashmir. 

Constitution Bench upholds Union’s abrogation of Article 370 | 11 December

The Bench unanimously held that Article 370 was a temporary provision designed to accommodate the integration of Jammu and Kashmir with the rest of India. In the 476-page judgement, CJI Chandrachud wrote the majority opinion on behalf of himself and Justices Gavai and Kant. Justices Kaul and Khanna wrote a separate concurring opinion. 

The Bench held that Jammu and Kashmir had no internal sovereignty but was a feature of asymmetric federalism. In a small win for the petitioners, they declared that para two of CO 272 was unconstitutional because it used the interpretation clause under Article 367 to amend Article 370. However, the Bench pointed out that the President of India had applied all provisions of the Constitution to Jammu and Kashmir under Article 370(1)(d) which had the “same effect” as declaring that Article 370 ceases to exist. C.O. 272 as a whole was upheld. Subsequently, they held that the President also had the power to abrogate Article 370 without the recommendation of the Constituent Assembly of Jammu and Kashmir. Through this, the Bench upheld CO 273.

The Bench left the constitutionality of the reorganisation of Jammu and Kashmir into the Union Territories of Jammu and Kashmir, and Ladakh unanswered, in light of Solicitor General Tushar Mehta’s assurance that statehood to J&K would be returned soon. They upheld the decision to carve out the Union Territory of Ladakh.  

Lastly, the judgement held that the Constitution of Jammu and Kashmir was inoperative after the abrogation of Article 370. 

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• Explainer On Article 370 Case In...

Explainer On Article 370 Case In Supreme Court : Issues & Arguments Regarding J&K Special Status Abrogation

Padmakshi sharma.

30 July 2023 11:58 AM GMT

Nearly four years after the Central Government abrogated the special status of Jammu and Kashmir under Article 370 of the Constitution, the much anticipated hearing of the petitions challenging the decision will start in the Supreme Court on August 2, 2023.As the case - which had been lying dormant in the Supreme Court for over three years since its last listing in March 2020 - is now going...

Nearly four years after the Central Government abrogated the special status of Jammu and Kashmir under Article 370 of the Constitution, the much anticipated hearing of the petitions challenging the decision will start in the Supreme Court on August 2, 2023.

As the case - which had been lying dormant in the Supreme Court for over three years since its last listing in March 2020 - is now going to the final hearing stage, here is an explainer on the issues and the arguments raised by both the sides.

What is Article 370?

The Indian Independence Act of 1947 marked the end of British colonization in India and led to the partition of British India into the independent dominions of India and Pakistan. Alongside this, the Instrument of Accession (IoA) was introduced. The IoA allowed the rulers of princely states, which were under British paramountcy, to choose between joining India or Pakistan. The State of J&K signed the IoA with India to seek assistance in countering an invasion from Pakistan.

The original accession covered three crucial matters: defense, foreign affairs, and communications. As India was drafting its Constitution, it was proposed that only those provisions of the Indian Constitution corresponding to the original IoA should apply to the State of J&K. Consequently, Article 370 was incorporated into the Indian Constitution. This article granted special status to J&K and permitted the state to draft its own Constitution. Moreover, it limited the legislative powers of the Indian Parliament concerning J&K, stating that articles of the Constitution, except those related to defense, foreign affairs, and communications, would apply to the state only with the concurrence of the State's constituent assembly.

Article 370 was included in the Constitution on October 27, 1949, under Part XXI, titled "Temporary, Transitional, and Special Provisions." Initially intended as a temporary provision, it was expected to remain in effect until the formulation and adoption of the State of J&K's constitution. However, the State's constituent assembly dissolved itself on January 25, 1957, without recommending either the abrogation or amendment of Article 370, leaving the status of the provision uncertain.

Over time, through judgments from the Supreme Court of India and the High Court of Jammu and Kashmir, Article 370 came to be considered as having acquired permanent status. This meant that to apply a central law to the state regarding subjects included in the IoA, "consultation" with the state government was required. On the other hand, for central legislation concerning matters beyond defense, foreign affairs, and communications, the "concurrence" of the state government was mandatory.

Abrogation of Article 370

Article 370(3) prevented the Indian parliament from amending Article 370 without the concurrence of the J&K Constituent Assembly. However, as mentioned above, the State’s Constituent Assembly was dissolved in 1957. Therefore, the revocation of J&K’s special status was executed in a two-step process through the promulgation of the Constitution (Application to Jammu & Kashmir) Order, 2019 on August 5, 2019. The implementation of these steps was aided by the fact that the State had been under the Presidential Rule since December 2018.

First, the Constitution (Application to Jammu & Kashmir) Order, 2019 , also known as the CO 272 order was passed. This order superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 and declared that all the provisions of the Constitution of India would apply to J&K. It also amended Article 367 of the Constitution. As Article 370 could only be amended by the recommendation of the J&K Constituent Assembly, the CO 272 order introduced a clause to Article 367. This clause stated that the expression "Constituent Assembly of the State," referred to in clause (2) of Article 370, should be read as the "Legislative Assembly of the State." Since there was no legislative assembly of J&K owing to its dissolution and the state was under Presidential rule, the recommendation of the Parliament was treated as equivalent to the recommendation of the legislative assembly. 

Also, CO 272 introduced further clauses in Article 367 to state that reference to the "Government of J&K" can be construed as the "Governor of J&K".

Following this, the Central Government took the second step. A Statutory Resolution recommending the abrogation of Article 370 was passed by the Lok Sabha with a majority of 351 to 72 votes and later cleared by the Rajya Sabha. On August 6, 2019 , based on the statutory resolution passed by the Parliament, President Ram Nath Kovind issued a notification (CO 273) stating that from the 6th August 2019, all clauses of Article 370 would cease to be operative. This effectively revoked the special status of Jammu and Kashmir.

The President invoked the powers under Article 370(3) to issue these notifications. Article 370(3) gives President the power to 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.

Notably, the Parliament also passed the Jammu and Kashmir Reorganization Bill 2019, which resulted in the bifurcation of the state into two Union Territories – Jammu and Kashmir, and Ladakh.

Formation of the Constitution Bench

On the same day of the Presidential notification, Advocate ML Sharma  initiated the legal challenge to the Constitution (Application to Jammu & Kashmir) Order, 2019 by moving the Supreme Court under Article 32 of the Constitution. Subsequently, activist Tehseen Poonawalla and Advocate Shakir Shabir , a lawyer from Jammu and Kashmir, also filed petitions challenging the same order. In the days that followed, a wave of petitions against the abrogation of Article 370 emerged from various quarters, including law graduates , National Conference leaders , former bureaucrats , defense personnel, and politicians , among others. These petitions raised concerns over different aspects of J&K, such as media freedom , detention of political leaders , challenges to the valley's lockdown , internet shutdowns, and more.

Given the multitude of petitions and their significance, the Supreme Court responded by constituting a Constitution Bench. The Bench comprised Justices N V Ramana, Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai, and Surya Kant. This Constitution Bench was assigned the task of hearing and adjudicating the petitions challenging the Presidential Orders under Article 370, which resulted in the revocation of J&K's special status along with the bifurcation of the State in two Union Territories. Additionally, the petitions concerning the lockdown measures and communication shutdown in J&K were separately heard by a 3-judge bench led by Justice NV Ramana.

Arguments raised before Constitution Bench

During the hearings before the Constitution Bench, spanning eight days, a series of arguments were presented by the petitioners and counter arguments were offered by the Centre.  

1. On the nature of Presidential Rule

Petitioners' Argument: First, the petitioners argued on the legality of the President’s Rule in J&K which was invoked under Article 356 of the Constitution. It was stated that such a rule is meant to be temporary in nature. Thus, the exercise of the President’s and the Parliament’s power when a State was under the President’s rule was also meant to be temporary and restorative in character. It was meant to ensure that a situation obtains again where a constitutional government is possible in the state. Thus, the power under Article 356 could not be used to bring about irreversible constitutional changes.

Centre’s Counter: Per contra, the Union Government argued that the President’s rule was conferred in the state strictly in conformity with the applicable constitutional provisions and was based on the assessment of various germane facts, in order to ensure that the administration of the State was carried out in accordance with the Constitution. Further, requisite approval was also granted by the Parliament under Article 356 for the President’s rule and the resolutions were passed in both the houses.

2. On the requirement of concurrence with the State Government

Petitioners' Argument: Since the State of J&K was under the President’s Rule from December 2018 till October 2019, all decisions in the State were taken by the Governor. Petitioners argued that the Governor was merely a delegate of the President, substituting for a popularly elected government as an emergency measure. Therefore, the will of the people of J&K found no expression in the concurrence of the government of the State provided by the Governor. Thus, the concurrence was invalid. The petitioners also argued that concurrence was also undemocratic since neither the President nor the Governor held any consultations on the issue either with the public at large or with members of the legislative council.

Centre’s Counter: The centre submitted that since the state was under the President's rule at the relevant time, the Parliament was vested with the powers otherwise exercisable by the Legislature of the state. Thus, as per Article 356(b), the Parliament was well within its powers to legislate in this case.

3. On the powers of the President under Article 370(1)(d)

Petitioners' Argument: As per the petitioners, the President’s power under Article 370(1)(d) was not a “constituent power” but merely a power to apply provisions with “modifications and exceptions”. Thus, the President only had an inherently limited power. Accordingly, Article 370 could only be abrogated if a proposal for its cessation emanated from the State’s Constituent Assembly (or its successor in law, if any). Since the J&K Constituent Assembly did not exist at the time, such a presidential notification could not have been passed. 

Centre’s Counter: The Centre argued on the broad nature of the President’s power under Article 370(1)(d). It submitted that the power under Article 370(1)(d) was exercised by the President on as many as six occasions when the President's Rule was in force in J&K and that at no time was any issue or challenge ever raised against the exercise of this power on the ground that the Legislative Assembly of J&K or the State Government of J&K were not in existence. Further, reliance was placed on Purartlal Lakhanpal v. President of India, (1962) 1 SCR 688 to state that the President had wide scope of power under Article 370(1)(d) to modify the provisions of the Constitution in their application to J&K.

4. On the vires of bifurcation of the State

Petitioners' Argument: The Petitioners argued that the action of bifurcation of the State into two Union Territories – Jammu and Kashmir, and Ladakh was in violation of Article 3 of the Constitution. This was because the character of a state could not be extinguished in its entirety into two union territories. It was argued that doing so impinged upon the federal character of the constitution because Article 3 limited the extent to which the federal nature of the Union could be reduced. Basically, it was stated that while states can be carved out from existing states, like Telangana was carved out from Andhra Pradesh, states could be entirely reduced into UTs.

Centre’s Counter: Referring to this submission of the petitioners as ex-facie untenable, the Centre submitted that the Explanation to Article 3 clearly provided that the references to "State" in Article 3, included a reference to a "Union Territory". Thus, the Centre could in fact bifurcate a State in two Union Territories. The Centre added that the bifurcation of J&K was done in order to address the grave problems of terrorism, militancy and separatism perpetrating in the valley. The move was also said to be crucial from the standpoint of economic upliftment of the valley by exploring the potential of tourism in the state and increasing employment opportunities by establishing industries.

5. On the applicability of the Constitution of J&K

Petitioners' Argument: The petitioners argued that the Centre’s action was also in violation of Article 147 of the Constitution of J&K. As per Article 147, limited amendments to Articles 3 and 5 of the J&K constitution could be made. Arguing that the Constitutions of J&K, and India, were parallel and independent of each other, the petitioners submitted that an executive exercise of power could not supersede constitutional power.

Centre’s Counter: Centre submitted that Article 147 of the J&K Constitution could not in any manner affect, dilute or control the power conferred on the President of India under Article 370 of the Indian Constitution. Equally, it could not fetter Parliament in the exercise of its functions under the Constitution of India. Adding that the provisions of the Constitution of India, including Article 370(1)(d) and 370(3) were not subject to, or subservient to, Article 147 of the Constitution of J&K, the Centre relied on SBI v. Santosh Gupta, (2017) 2 SCC 538. In this case it was held that the Constitution of J&K was ''subordinate to the Constitution of India".

Reference to a 7-judge bench

During the proceedings before the Constitution Bench, Senior Advocate Dinesh Dwivedi, representing journalist Prem Shankar Jha, urged for the matter to be referred to a 7-judge Bench due to conflicting opinions rendered by coordinate Benches of the Supreme Court in two significant cases: Prem Nath Kaul v. The State of Jammu and Kashmir [1959 AIR 749] and Sampat Prakash v. State of Jammu and Kashmir [1970 AIR 1118] . Senior Advocate Sanjay Parikh also supported this request.

The essence of their argument centered around the contradiction between Sampat Prakash and the earlier judgment in P rem Nath Kaul. The concern was that Sampat Prakash upheld a Presidential Order passed under Article 370 after the year 1957, when the constituent assembly of Jammu and Kashmir had already been dissolved. On the other hand, Prem Nath Kaul had established that the President and Parliament no longer possessed the powers under Article 370 to issue such orders after the dissolution of the J&K Constituent Assembly.

Dwivedi and Parikh contended that even the 5-judge Bench hearing the issue would not be able to resolve this conflict, as it had the same composition as the benches in the earlier cases.

Notably, the reference to a larger Bench was not supported by other senior counsels, including the then Attorney General K.K. Venugopal.

Ultimately, the Supreme Court held that there was no need to refer the petitions to a larger bench. It was held that the context of Prem Nath Kaul case was different, as it was dealing with the validity of a legislation passed by the Yuvraja of J&K before the sitting of the Constituent Assembly of J&K. Therefore, owing to difference in circumstances as well as the issues raised, it could not be held that there was a conflict in the two judgements.

The Aftermath

Once the reference to a 7-judge bench was declined on March 2, 2020, the matter was not listed for a long time. Ultimately, on April 2022, Senior Advocate Shekhar Naphade mentioned before the then Chief Justice of India NV Ramana, the urgency to list the long pending petitions. While CJI Ramana stated that he would consider reconstituting a 5-judge bench to hear the matter again, the matter was ultimately not listed for hearings in either his or his predecessor CJI UU Lalit’s tenure. After the matter was mentioned before the current CJI DY Chandrachud on three different occasions, it was finally listed for hearings on August 2, 2023. The bench taking up the matter comprises CJI DY Chandrachud, Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant.

Abrogation of Article 370: Political Attack or Step for Holistic Democracy?

6(5) IJLMH Page 2343-2356 (2023), DOI: https://doij.org/10.10000/IJLMH.116040

15 Pages Posted: 20 Nov 2023

Tanya Bhattamishra

University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University

Date Written: October 16, 2023

The abrogation of Article 370 of the Indian Constitution in August 2019 marked a significant turning point in the history of the Indian subcontinent. This paper aims to comprehensively analyse the decision to revoke the special status of the state of Jammu and Kashmir and its implications on the region, as well as the wider political and socio- economic landscape of India. This paper begins by providing a historical context of Article 370 and its evolution, shedding light on the unique provisions that granted the state of Jammu and Kashmir a level of autonomy distinct from other Indian states. Following this, it delves into the complex legal and constitutional dimensions that surrounded the abrogation process. The paper then examines the geopolitical consequences of this monumental decision, with a focus on its impact on India-Pakistan relations and the security dynamics in the region. The paper also explores the implications for the residents of Jammu and Kashmir, including the altered demographics and the socio-economic challenges faced by the region in the post-370 era. Through a multidisciplinary approach that integrates historical, legal, political, and socio- economic perspectives, this paper aims to provide a comprehensive understanding of the abrogation of Article 370 and its far-reaching consequences. It underscores the complex interplay of factors that have shaped the region and the nation, and it invites further discussion on the impact of this historic event on the ongoing challenges and opportunities facing the people of Jammu and Kashmir and the Indian subcontinent as a whole. The paper finally closes by making a harms-benefits analysis of the impact that Article 370 has left on the modern Jammu and Kashmir and Ladakh region.

Keywords: Article 370, Jammu & Kashmir, President Rule, Abrogation, Requirement, Implications

Suggested Citation: Suggested Citation

Tanya Bhattamishra (Contact Author)

University school of law and legal studies, guru gobind singh indraprastha university ( email ).

GGS Indraprastha University, C-Block Main Road, Sector 16C, Dwarka, Delhi- 110078 New Delhi, Delhi 110078 India

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Home / Editorial

Constitutional law, judgment on article 370,  12-dec-2023.

• Constitution of India, 1950 (COI)

Source : Indian Express

Introduction

Recently the Supreme Court of India acting as the guardian of the constitution gave its judgment which it reserved on 5 th September 2023. A five-judge constitutional bench of Chief Justice of India (CJI) DY Chandrachud , Justices Sanjay Kishan Kaul , Sanjiv Khanna, BR Gavai, and Surya Kant unanimously upheld the abrogation of Article 370 and Article 35A in the case of In Re: Article 370 of the Constitution (2023).

What were the Major Issues Framed by the Supreme Court in In Re: Article 370 of the Constitution Case?

• Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution?
• Whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir in exercise of the power under Article 370(1)(d)?
• Whether the abrogation of Article 370 by the President in exercise of the power under Article 370(3) is constitutionally invalid in the absence of a recommendation of the Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to clause (3)?
• Whether the Proclamation which was issued by the President under Article 356 of the Constitution on 19 th December 2018 and the subsequent extensions are constitutionally valid?
• Whether the Jammu and Kashmir Reorganization Act, 2019 by which the State of Jammu and Kashmir was bifurcated into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) is constitutionally valid considered Article 3 of the Constitution of India?
• Whether during the tenure of a Proclamation under Article 356 the status of the State of Jammu and Kashmir as a State under Article 1(3)(a) of the Constitution and its conversion into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power?

What were the Contentions Against the Abrogation of Article 370?

• The petitioners said that no opportunity was afforded to the other parties to demonstrate strength in the house.
• It renders the federal structure susceptible to the whims of the political party in power.
• Upon the enactment of the Constitution of Jammu and Kashmir, the Constituent Assembly became functus officio and as such, Article 370 became permanent.

What were the Contentions in Favour of the Abrogation of Article 370?

• The Union of India (UOI) contended that it was open to the President to take a final stock of the exercise of the authority under Article 370(1)(d).
• The UOI said that Article 370 was conceived and designed to aid the constitutional integration process on the same lines as it happened with other states.
• Therefore, applying the Constitution of India to the State can never be an “arbitrary act”.
• To become a fundamental document, a constitution must necessarily include several facets of undisputed sovereignty including the power to acquire new territory which, in itself includes power to “ cede” its own territory.
• Under Article 3, Parliament has the power to convert a State into two Union territories.
• Article 370 is not a part of the basic structure of the Constitution of India.
• Article 35A is in violation of fundamental rights of the citizens of other parts of the country.

What are the Conclusions given by the Supreme Court in In Re: Article 370 of the Constitution Case?

• The SC clearly quoted that Article 370 of the Constitution of India was a feature of asymmetric federalism and not sovereignty.
• The court said that Article 370 was enacted as a transitional provision and did not have permanent character.
• The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy the same status and rights as given to citizens residing in other parts of the country.
• SC in respect of Article 370(3) said that it contained the mechanism to bring the temporary arrangemen t to an end, and in turn, to de-recognize the internal sovereignty of the State and apply the Constitution of India in toto.
• The SC finally considered the step towards constitutional integration.

• IAS Preparation
• UPSC Preparation Strategy
• Article 370

Supreme Court Upholds Abrogation of Article 370

In this article, UPSC aspirants will get to know what is Article 370 and Article 35A, important dates, controversies associated with Article 370 and its revocation. Article 370 and the constitutional history of Jammu & Kashmir are important for the IAS exam .

Article 370 – A Constitutional History of J&K:- Download PDF Here

Important Points to learn:

Supreme Court Verdict On Article 370

• The judgement was passed by a five-judge constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.
• The SC said that steps should be taken to conduct elections in the assembly by September 30, 2024.
• The Supreme Court did not accept the argument of petitioners that the Union government cannot take actions of irreversible consequences in Jammu & Kashmir during President’s Rule (the abrogation was done during President’s Rule).
• The Supreme Court also said Jammu and Kashmir did not retain an element of sovereignty after joining India.

Article 370 – Introduction

The key feature of Article 370 was that the Central laws passed by the Parliament did not automatically apply to the erstwhile State of J&K, and it was the right of the State Legislature to approve them by passing a parallel act. 

• Article 370 is a constitutional provision that gave Jammu and Kashmir its special status.
• As evident from the title of the Part, it was supposed to be a temporary provision and its applicability was projected to last till the formulation and adoption of the State’s constitution.
• It restricted the Parliament’s legislative powers with respect to the state of J&K.

Pandit Nehru, on the floor of Lok Sabha on 27th November 1963, said that Article 370 has been eroded and the process of gradual erosion is going on. A year later, the then Home Minister Gulzari Lal Nanda, again on the floor of Lok Sabha on 4 December 1964, said, Article 370 is a tunnel to take the Constitution of India to Jammu and Kashmir. He further said that in the end, only the shell will remain there and it will be bereft of its contents, and it will hardly make any difference whether it is kept or not.

These two statements by two tall leaders of the country speak volumes about the dilution of Article 370 of the Constitution of India just merely after one decade of its enactment. The process had right away started in the year 1950, with the issuance of the Constitutional Application Order 1950, and thereafter, a number of parlances took place between the Centre and the State leadership, which evolved into an agreement known as the Delhi Agreement of 1952 , wherein a number of subjects apart from those in the Instrument of Accession were agreed to be made applicable to the State of J&K. Some of them are as under:

• Appointment of the head of State.
• Persons having domicile in the State of J&K shall be Citizens of India.
• Fundamental Rights
• Jurisdiction of Supreme Court
• National Flag
• Financial Integration
• Emergency Powers

Presidential Orders

Under Article 370 of the Constitution of India, the President had the power of issuing orders for the application of provisions of the Constitution of India with modifications, exceptions and amendments in the provisions. And this power has been upheld in several cases by the Supreme Court, e.g., in P. L. Lakhanpal vs the State of J&K.

As already said, for the application of other provisions of the Constitution of India to the State of J&K, the only mode available was the Constitutional Application Order. And the same was to be done with the consultation and concurrence of the State Government. The Presidential Orders, broadly speaking, deal with the following subject matters:

• Enhancing the jurisdiction of the Parliament to enact laws in the State of J&K out of the Union List .
• Laws relating to an increase or decrease in the area of the State.
• Making provisions for the return of the permanent residents of the State who migrated to the territories included in Pakistan under permit for settlement.
• Providing for constitutional protection to the laws relating to permanent residents of the state, their special rights and privileges, employment under Government, acquisition of immovable property, settlement in the State, scholarship.
• Earmarking the number of seats in the House of the people, excluding the area under the occupation of Pakistan.
• Provision for delimitation of Parliament Constituencies.
• Transfer of judges from the High Court of J&K or to the said Court.
• Exclusion of the State List.
• Provision as regards the decision affecting the disposition of the State of J&K.
• Acquisition and requisition of immovable property on behalf of and at the expense of the Union.
• Provision relating to the use of the official language of the Union and in the proceedings before the Supreme Court .
• Provisions for the proclamation of emergency.
• Provisions for non-application of the amendments carried out by the Parliament of India in the Constitution of India.
• Provision for Governor and the Election Commission.

In the year 1954, the Constitutional Application Order 1950 was renamed as the Constitutional Application Order 1954 and its issuance was the first infringement on the constitutional autonomy of the State of J&K. It culminated with the issuance of the Constitution (Application to J&K) Order, 2019. Article 370 itself was used to make it weak after remaining on the Constitution book for 70 years.

Facts on Article 370

Article 370 – Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything in this Constitution,

(a) The provisions of Article 238 shall not apply 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

• 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
• Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognized 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 Maharajas Proclamation dated the fifth day of March 1948 ;

(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 1 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 2 of sub clause (b) of clause (1) or in the second proviso 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.

Application of 370

• However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of Article 370, leaving the status of the provision on a cliffhanger.
• The provision was later held to have acquired permanent status by way of rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.
• This implied that to apply a central law to the state on subjects included in the Instrument of Accession, mere “consultation” with the state government is required.
• However, to apply a central legislation to matters other than defence, foreign affairs and communications, ”concurrence” of the state government was mandatory.

Jammu and Kashmir Constitution

• Article 3-> Relationship of the State with the Union of India :- The State of Jammu and Kashmir is and shall be an integral part of the Union of India.
• In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is a categorical acknowledgement about the object of the J&K Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof.”

Constitution (Application to Jammu and Kashmir) Order, 2019

• (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.

    (2) It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time.

• All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:-

To article 367, there shall be added the following clause, namely:-

“(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir-

(a) References to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;

(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir , acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir ;

(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and

(d) in the proviso to clause (3) of Article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.

Has Article 370 been scrapped?

• The Presidential order signed by the President of India has not scrapped Article 370 .
• But invoking this very article, the special status of Jammu & Kashmir has been withdrawn.
• Thus, Article 370 is very much on the statute book.
• In other words, the move by the government gives full applicability of the Indian Constitution in Jammu and Kashmir. Earlier, only a set of limited provisions such as foreign relations, communication and defence had jurisdiction over Jammu and Kashmir.

What is the status of Article 35-A?

• Since Presidential Order of August 5 has extended all the provisions of the Constitution to Kashmir , the Fundamental Rights chapter has now been extended and therefore some discriminatory provisions of Article 35-A may not be in accordance with prescribed Rules.
• Therefore the President can also declare this to be inapplicable.
• Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir states legislature to define “permanent residents”.
• The provision mandates that no act of the state legislature coming under the ambit of Article 35A can be challenged for violating the Indian Constitution or any other law of the land.

Who Are Permanent Residents?

• as a person who was a state subject on May 14, 1954
• who had been a resident of the state for 10 years
• has lawfully acquired immovable property in the state
• The state legislature can alter the definition of a permanent resident by passing a law with a two-thirds majority .
• Permanent residents are given a Permanent Resident Certificate which forms the basis of their rights in the state.
• It also has a provision to recognize as permanent residents, people who had migrated to Pakistan and returned, though subject to certain conditions.

Rights and Privileges

• Employment under the state government/State Public Sector Jobs
• Acquisition of immovable property in the state
• Settlement in the state
• Right to scholarships and such other forms of aid as the state government may provide

Why was the move a necessity?

By reorganising Kashmir’s political status, Modi govt. is addressing a colonial mess

• In Africa and Asia, there are countless territorial conflicts. The Indo-Tibetan frontier opened up by Curzon remains a contested boundary dispute between India and China. More broadly, the buffers and protectorates constructed by the Raj to limit conflict with Russia are now zones of political contestation between India and a rising China.
• The Durand Line drawn between India and Afghanistan in 1893 , a few years before Curzon arrived in India, remains disputed between Kabul and Islamabad. Even the Taliban, nurtured by Pakistan as an instrument to gain influence in Afghanistan, does not accept the Durand Line.
• Many other peripheries of the Raj, from Balochistan in the west to Xinjiang and Kashmir in the north to Tibet and the eastern Himalayan regions between India, upper Burma and China are all in a turmoil of varying degrees.

Part of the problem lies in the nature of the frontiers that the Subcontinent inherited from the Raj.

The land borders of India were not defined by a single line, but by what Curzon identified as the three-fold frontier.

• There was the “ administrative frontier ” that marked out regions that the Raj governed to the fullest extent.
• Beyond that was the “ frontier of active defence ” like the Durand Line.
• A third was the “ strategic frontier ” consisting of the outer boundaries of protectorates over which the Raj exercised a measure of control.

Confusion over Control of Territories

• While the British Raj, Czarist Russia and Qing China found ways to live with ambiguities in remote corners of the empire, the new nationalist regimes that succeeded them have had much more difficulty.
• The Partition of the subcontinent, based on religious considerations, added an explosive dimension to an already complex inheritance.
• The successor states to the empires laid formal claims to tracts of territory that had an ambivalent status, but have struggled to realise them.

The colonial past has left territories that are claimed by many countries with significant challenges

• Pakistan has struggled to find stability on its western borderlands — where the Baloch and the Pashtun continue to challenge its claims.
• Beijing continues to claim the entire state of Arunachal Pradesh.
• But the arguments with China are now mostly political. After instigating trouble in each other’s territory for a period, Delhi and Beijing are now committed to managing the dispute peacefully, while expanding the broader relationship.
• There is a frequent spike in military tensions, but there has been no shooting war.
• India has had greater success with Bangladesh . Early on in his first term, Prime Minister Narendra Modi seized the opportunities to settle the disputes with Dhaka on the land and maritime boundary inherited from the Partition.
• But unlike Dhaka and Beijing, Rawalpindi is not really prepared for a peaceful resolution. Repeated efforts by Indira Gandhi (1972), Atal Bihari Vajpayee (1999), and Manmohan Singh (2005-07) ended in failure. The inherent difficulty of negotiation has been compounded by Pakistan’s use of terrorism and Kashmir’s ambiguous political status within the Indian Union .
• In confronting Pakistan’s terrorism and reorganising the political status of Kashmir, the Modi government has set a new policy template.
• The key to its success lies in finding early political reconciliation within Kashmir and persuading the Pakistan army that its interests are better served by stable, peaceful and legitimate frontier with India.

Due process

• The process of revocation of Article 370, which ties the state with India, needed the approval of J&K’s Constituent Assembly. In the absence of such an assembly, it can be removed with the concurrence of the state legislative assembly. But the assembly does not exist at the moment either, and the notification suggests that it was the Governor’s concurrence that was obtained to render the provisions irrelevant . This is clearly not sufficient.
• The process has been pushed through without consultations with Kashmir’s political leaders , who have been under detention.
• Further, the reorganisation of states requires the consent of the state assembly concerned .
• In this case, J&K has been bifurcated, and statehood diluted to UT status, without any deliberations in the assembly.

Article 3 of the Constitution

• It says that before parliament can consider a bill that diminishes the area of a state or changes its name, the bill must be “referred by the President to the Legislature of that State for expressing its views thereon”.
• This is an essential safeguard of India’s federal system and has clearly not been followed in this case.
• In Parliament, the Home Minister invoked that since the J&K assembly was dissolved and the state is under Central rule, it is parliament that gets to exercise the prerogatives of the assembly .
• This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity.
• The Centre’s abrupt move disenfranchised people on a matter that directly affects their life and sentiments.

Kashmiris seek greater democracy

• Like all Indian citizens, Kashmiris seek greater democracy.
• Elements keen to destabilize India would seek to build a narrative that Delhi is taking away powers from the local level . It is important that the process of turning the state into a UT does not lead to alienation.

Deepen communal and religious lines

• While Ladakhi Buddhists, for instance, are now celebrating the fulfilment of their long-pending demand for Union Territory status, the voices of Kargilis who are still under a strict curfew are yet to be heard.
• They may not support this decision because ‘a Union Territory without a legislature’ not only negates the idea of decentralisation of power to the grassroots (the undergirding principle of the autonomous hill council) but could well lead to a shifting of the loci of power to Leh, resulting in losing whatever gains they have assiduously made over the years.

Instrument of Accession

• In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”.
• Clause 7 said “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”.
• In India’s acceptance of the IoA, Lord Mountbatten stated that “it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people”.

Read more about the history of Instrument of Accession in the linked article.

Elections in Jammu and Kashmir were delayed

• The three independent observers appointed by the Election Commission — to assess the readiness for assembly elections in Jammu & Kashmir — are learnt to have conveyed to the poll panel that the situation is conducive for elections immediately after Lok Sabha polls.

Why Jammu and Kashmir is special?

• Former MP Karan Singh, son of Maharaja Hari Singh, wrote in An Examined Life : “The right-wing seems to resent that J&K carries a special status. That has always surprised me. We are a great country, we should be large-hearted. J&K came to India under complex and difficult circumstances. Now after all these years to ask why it holds a special position is baffling. It will always be special because it was born out of a special historical event and subsequent political developments. In England they have all sorts of governing systems…, we should feel so lucky that J&K, a Muslim-majority state became a part of India despite the religion-led Partition. Cherish that; relish that; honour that.”
• In November 1963, in a debate in Parliament, when Hari Vishnu Kamath argued that Kashmir was “not fully” integrated, Nehru asserted that it was, indeed, “fully integrated” with India. He said: “The House will remember that we have some restrictions with respect to NEFA and other places; outsiders cannot buy land. This is also in some other districts, the hill districts of Assam . This is to protect them.”

Looking at these arguments from the past, the people, the local political parties in Jammu and Kashmir and the political parties in India should have been taken into confidence for bringing about an end to legislation that was indeed the bridge between India and the state of Jammu and Kashmir.

• The recent pre-emptive deployment of additional forces into Jammu and Kashmir enables the state government to deal appropriately with any situation.
• If large-scale protests do erupt, how they are handled will be extremely important.
• Pakistan can be expected to fish actively in the troubled waters of Kashmir. Buoyed by the recent statements of United States President Donald Trump on mediation, Pakistan will attempt to internationalize the issue of Kashmir.
• However, there are limits to Pakistan’s response. Hobbled by international pressure and a dire financial situation, Pakistan needs to keep its actions calibrated to ensure that the situation does not escalate to a conventional conflict.
• The Indian Army’s deployment along the Line of Control in Jammu and Kashmir is extremely robust, and will not allow large-scale infiltration.
• It is also essential to not look at tackling the situation purely through a security approach. If the government’s action aims to find a resolution to the Kashmir conflict, it has to take the local population into confidence .
• The decision of the government must not be painted in terms of victory or defeat, but as a win-win for everyone.
• The advisory to various state governments to ensure the safety and security of the residents of Jammu and Kashmir is a step in the right direction.

It must now be followed up by a genuine outreach to the people of the state.

Union Territory Status

• There were seven union territories (UTs) specified under Part II of the First Schedule to the Constitution of India , viz. Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli, Daman and Diu, Lakshadweep, National Capital Territory of Delhi and Puducherry.
• Except for the National Capital Territory of Delhi and Puducherry, UTs did not have their own legislature until now.
• Now, the state of Jammu and Kashmir has also been added along with Delhi and Puducherry to be a UT with a legislature .

Article 240 of the Indian Constitution

• According to Article 240, the President of India has the power to make regulations for UTs not having their own legislature.

Is it right to give a state Union Territory status? Yes

• Frederic Drew, who served as Governor of Ladakh in the 19th Century had rightly observed that “the territories of J&K have no other bond of cohesion than the fact of Maharaja’s rule, no simple name for it exists”.
• Ladakhis since then have consistently been demanding a separate region from the Jammu and Kashmir State and asking for the status of Union Territory for the area.
• With the United States seeking a quick exit from, and willing to let the Inter-Services Intelligence-sponsored Taliban control Afghanistan (and China deeply embedded in the power play), the heartland of Central Asia has rarely been as adverse to Indian interests since 1989, when the Soviet Union withdrew from Afghanistan. Kashmir could, in these circumstances, become even more vulnerable to external elements than it was in the 1990s.
• The situation emerging in the western neighbourhood and the possible re-ascendance of the Taliban in Afghanistan call for greater attention and care to be taken in what will remain as J&K after bifurcation. Making it a Union Territory with a legislature makes a lot of strategic sense.
• In the interest of security, this is a good move. Once all the security measures are met, we can give statehood as it happened with Goa and Arunachal Pradesh in the past.
• It will insulate Ladakh from the happenings in the other two regions and provide for greater development of the region.
• Ladakh’s unique geographical location should offer India a huge counter-offensive potential in terms of leveraging connectivity to the Eurasian region and China.
• It is a book penned by Ex-Governor of J&K Jagmohan during 1984-1990.
• “Article 370 is nothing but a breeding ground for the parasites at the heart of the paradise. It skins the poor. It deceives them with its mirage. It lines the pockets of the ‘power elites’”.
• Geographically and metaphorically, Jammu and Kashmir is the crown of secular India. Its people and leaders had chosen secular India over Pakistan.
• The new doctrine will have to persuade the majority of the people of Jammu and Kashmir that greater integration with India will provide them with more opportunities, provide more freedom and space, and strengthen their rights much more than the alternatives proposed by other mainstream parties or separatists.
• Going forward, India should take the people of J&K into confidence, bring development which includes all sections of society and restore statehood as per its initial promise.

Jammu and Kashmir Reorganisation Act, 2019

• The Union Territory of Jammu and Kashmir has a legislative assembly,
• Whereas the Union Territory of Ladakh does not have a legislative assembly and is administered by the Lieutenant Governor alone.
• The Union Territory of Ladakh will include the districts Leh and Kargil which, in effect, ceased to be part of the existing state of Jammu and Kashmir.
• The remaining territories remained with Jammu and Kashmir after the bifurcation.
• Representation in the House of People: Out of the six Lok Sabha seats in the state of Jammu and Kashmir, five remained with the Union Territory of Jammu and Kashmir and one went to the Union Territory of Ladakh.
• The Election Commission may conduct Lok Sabha elections for both the Union Territories as per the allocation of seats specified in the Delimitation of Parliamentary Constituencies Order, 1976 as amended by this act.
• The Jammu and Kashmir Legislative Assembly to have a tenure of five years unless it’s dissolved earlier by the L-G.
• This allows the Union Territory of Jammu and Kashmir to function as a legislative assembly under an administrator appointed under the said Article. In this case, it will be the LG.
• The constituencies to be re-organised through a de-limitation exercise under the 2002 Act of Parliament.
• For the purpose of delimitation, the 2011 census figures are to be taken as the benchmark.
• The state assembly currently has 111 seats, of which 46 are in the Valley, 37 in Jammu and the remaining four are in the Ladakh division .
• Of these, 24 seats would be deemed to be vacant till the time Pakistan-Occupied Kashmir comes under the jurisdiction of the Indian state.
• With this, the existing legislative council in Jammu and Kashmir stands abolished . “Every member thereof ceases to be such member and all bills pending in the Legislative Council shall lapse.”
• Four sitting members of the council of states (Rajya Sabha) representing the existing state of Jammu and Kashmir shall be deemed to have been elected to fill the seats allocated to the Union Territory of Jammu and Kashmir . Their term of office remains unaltered.
• The High Court of the existing state of Jammu and Kashmir is the common High Court of the two Union Territories.
• The new Assembly shall have reservations for Scheduled Caste and Tribes as in other parts of the state.

Legislative powers of the Union Territory of Jammu and Kashmir

• The Legislative Assembly may make laws for the whole or any part of the Union Territory of Jammu and Kashmir with respect to any of the matters enumerated in the state list except on subjects “public order” and “police” which will remain in the domain of the Centre vis-a-vis the LG.
• In case of inconsistencies between laws made by Parliament and laws made by the Legislative Assembly, earlier law shall prevail and law made by the Legislative Assembly shall be void.

Role and powers of the Lieutenant Governor

• The Governor of the existing State of Jammu and Kashmir shall be the Lieutenant Governor for the Union Territory of Jammu and Kashmir, and the Union Territory of Ladakh for such period as may be determined by the President.
• The L-G will be assisted by advisors appointed by the Centre since the Union Territory will not have a Legislative Assembly.
• In the case of the Union Territory of Jammu and Kashmir, the L-G shall “act in his discretion” on issues which fall outside the purview of powers conferred on the Legislative Assembly , in which he is required to exercise any judicial functions, and/or matters related to All India services and the Anti-Corruption Bureau.

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• Constitution of India
• Constitutional law

Article 370 of Indian Constitution

This article is written by Niharika Agrawal , from IFIM Law School. This article deals with the history of Article 370 and its actual status under the Constitution of India.

It has been published by Rachit Garg.

Table of Contents

Introduction

Article 370 of the Indian Constitution was a temporary provision that grants special status to the State of Jammu and Kashmir. This Article is temporary in the sense that the Constituent Assembly of Jammu and Kashmir had the right to modify, delete or retain it, and also it was considered to be temporary only till a plebiscite was held to ascertain the public wish. However, in recent times there has been a huge debate with respect to the temporary status of this Article. On many occasions, the Government and judiciary have claimed it to be permanent provisions. Thus the present article deals with the history of Article 370 and the actual status under the Constitution of India. 

Both India and Pakistan claim full sovereignty over the Himalayan territory of Kashmir. Previously known as Jammu and Kashmir (J&K), the region became part of India in 1947, not long after the subcontinent was partitioned following the end of the British administration. A ceasefire line was agreed upon after India and Pakistan went to war over it and came to control separate portions of the area. The state of Jammu and Kashmir, which is controlled by India, has experienced violence for 30 years as a result of a separatist uprising against Indian rule.

Brief about Article 370 of Indian Constitution

The autonomy of the State is given by Article 370 of the Constitution. The temporary provision of this Article is derived from Part XXI of the Constitution under the title “Temporary, Transitional and Special provisions” which grants special status to the State of Jammu and Kashmir. This article was included in the Constitution on 17th October 1949 that exempted the State from the Indian Constitution except from Article 1 and Article 370 and allows the State to frame its own Constitution. It also restricts Parliament’s legislative powers in respect of Jammu and Kashmir. There were many Indian legislation and statutes that apply to the whole of India but are not applicable to the State of Jammu and Kashmir. This Article helped the State to have total control over 94 items out of 97 items of the Union List except in the matters related to defense, foreign affairs, finance, and communication. However, due to different sets of laws for the State, the Parliament needs to take State government approval for the implementation of any of the above 94 items. The citizens of the state had different laws and rules than the union relating to citizenship, ownership, and Fundamental Rights. Due to this, any Indian citizen who is not a permanent resident of the state could not buy the property in Jammu and Kashmir. 

Jammu and Kashmir’s special status was effectively abolished in August 2019 when Article 370 was revoked, marking a turning point in the history of the area that was largely unopposed by the international community. Most nations, with the exception of China and Pakistan, were reluctant to overtly criticise India’s activities in Kashmir. In contrast to the constitutional changes themselves, the scant international response to India’s activities was mostly concentrated on the humanitarian situation in the valley. J&K was exempted from the application of the Indian Constitution (with the exception of Article 1 and Article 370 itself) and was allowed to create its own Constitution by virtue of Article 370. It limited the legislative authority of Parliament over J&K. The state government was only to be ‘consulted’ in order to extend a central law to topics covered by the Instrument of Accession (IoA). However, concurrence from the state government is required to expand it to additional issues. When British India was split into India and Pakistan by the Indian Independence Act of 1947 , the IoA came into effect.

Salient features of Article 370 of Indian Constitution

• The State of Jammu and Kashmir has its own different flag and Constitution.
• The presidential rule cannot be imposed in the state, only the Governor’s rule can be proclaimed. The Government of India cannot declare a financial emergency under Article 360 in the state. Only a national emergency can be imposed in matters of external aggression or war. 
• The state has its own Criminal code titled as Ranbir Penal Code . 
• The citizens in the state have dual citizenship.
• The term of other Indian state Legislators is 5 years whereas, for Kashmir, it was 6 years. 

History of Article 370 of Indian Constitution

After the independence of India in 1947, the former ruler Maharaja Hari Singh of Jammu and Kashmir declared to remain independent from India and Pakistan. However, after this proclamation, Pakistan launched a non-official war to free the region from Hindu rule where there is a majority of Muslim people. When  Maharaja Hari Singh was unable to protect the state, he sought help from the Government of India. The Government of India was ready to help on the condition that Kashmir would accede to India. Hence both the parties signed the Instrument of Accession in Oct 1947. According to this accession treaty, this treaty could not be amended without the state’s consent and it also specifically protected the right to rectify the application of any further Constitution of India in its territory. 

During the framing of the Constitution of India, certain important events along with signing the Instrument of Accessions such as the ruler’s proclamations issued in 1948 and 1949, the establishment of popular government in Jammu and Kashmir, presence of representatives of J&K in the Constituent Assembly of India and the debates relating to Article 370, occurred in the State of J&K. 

The event of the ruler’s proclamation in March 1948 and November 1949, clearly examined the creation of a Constituent Assembly for J&K to enact its Constitution. These proclamations noted that the Constitution of India was likely to circulate and it would also apply to J&K temporarily so that India could govern its Constitutional relationship with the state of J&K. It was also further ordered that the Constitution framed for the State would supersede all the other provisions as and when it commenced. In this way, Article 370 was enforced from 26th January 1950 for temporary regulation of the constitutional relation between India and the State of Jammu and Kashmir. The feature of temporary character simply means that it will govern the relationship between Central and J&K till the Constituent Assembly of J&K enacts the Constitution of Jammu and Kashmir.  

The Constitution of Jammu and Kashmir was adopted on 17th November 1956 and was in effect from 26th January 1957. It was the only state in the country to have its own Constitution and had special status compared to the other Indian States. However, Article 370 and its provisions continued to govern the relationship between the state and the center in the interregnum. It was also noted that the Constituent Assembly of J&K was not created under Article 370, it just recognizes the importance of the Constituent Assembly as a reflection of the will of the people of Kashmir and its special status. 

The Indian Independence Act, 1947 gave 600 princely states , whose sovereignty had been restored at independence, three options: 

• To remain independent, 
• Join the Dominion of India, 
• Or join the Dominion of Pakistan. 

Joining either of these two nations required the execution of an IoA. A state that wanted to join might explain the conditions on which it consented to do so, even if there was no prescribed form. Pacta sunt servanda , which means that pledges made between states must be kept, is the adage that governs agreements between states. If there is a breach of an agreement, the parties must generally be put back in their original positions.

India’s declared position was that any disputes over accession should be resolved in accordance with popular will rather than by the princely state’s monarch acting alone. In India’s approval of the IoA, Lord Mountbatten remarked, “It is my Government’s aim that the subject of the State’s accession be determined by a reference to the people as soon as law and order have been restored in Kashmir and her soil is freed of the invader.” In its 1948 White Paper on J&K , the Indian government said that it saw admission as entirely transitory and provisional.

With the support of Vallabhbhai Patel and N Gopalaswami Ayyangar, Prime Minister Jawaharlal Nehru penned the following to J&K Prime Minister Sheikh Abdullah on May 17, 1949, “It has been settled policy of Government of India, which has been stated both by Sardar Patel and me on many occasions, that the Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly.”

How was Article 370 enacted

• The Government of J&K provided the initial draft for Article 370. Article 306A (later renamed as Article 370) was modified and negotiated before being approved by the Constituent Assembly on May 27, 1949. 
• Even if accession was complete, India had offered to hold a plebiscite when the prerequisites were met, and if accession was not confirmed, “ we shall not stand in the way of Kashmir divorcing herself from India,” was the belief according to the person who moved the resolution. 
• Ayyangar reaffirmed India’s commitment to a referendum and the creation of a separate constitution by the Constituent Assembly of J&K on October 17, 1949, when Article 370 was eventually incorporated into the Indian Constitution by India’s Constituent Assembly.

Importance of Article 370 for the Indian Union

The Indian Constitution consists of only two such Articles that have provisions applicable in Jammu and Kashmir. Article 1 includes the State of Jammu and Kashmir in the list of states. Article 370 is one such tunnel that allows the Constitution to be applicable in the state. It is observed that India has used Article 370 at least 45 times to extend the provisions of the Constitution of India to Jammu and Kashmir. Article 370 is the only way through which, by just one Presidential order, India has almost nullified the effect of the state’s special status. After the enactment of Order in 1954 , more of the entire Constitution and its provisions and amendments were applicable to the State of Jammu and Kashmir. 94 out of 97 matters of Union list were applicable in the state, 26 out of 27 items of the Concurrent List have been extended and 260 out of 395 Articles are extended to the state besides 7 out of 12 Schedules . 

The Central government has used Article 370 in amending the provisions of the Constitution of Jammu and Kashmir even after the absence of such power to the President. Article 249 of the Constitution which provides power to the Parliament to frame laws on the State List entries, was applicable to the state just by the recommendations of the Governor and without any resolution by the Assembly. 

Temporary character of Article 370 of Indian Constitution

Article 370 is a unique character. For any matter related to the application of central law in the State of Jammu and Kashmir on the subjects provided in the Instrument of Accession, mere consultation of the state government is required. However, in other matters, the concurrence of the State Government is mandatory. This gives rise to major differences as in the former one there is discussion at the beginning and in the latter case, direct acceptance from the other party that is the state government is compulsory. 

Article 370 is an Article under Part XXI of the Constitution. This Article is temporary in the sense that the Constituent Assembly of Jammu and Kashmir have the right to modify, delete, and retain it. However, the Constituent Assembly of Jammu and Kashmir in its wisdom decided to retain it. Another reason behind its temporary character is the Instrument of Accession which was temporary in nature until a plebiscite was held to ascertain the public wish. There are certain opinions of the court regarding the temporary status of Article 370 of the Constitution. 

In the case of Kumari Vijaylaxmi Jha v. Union of India, (2017) the Delhi High Court, rejected the petition stating that Article 370 was a temporary provision and the continuation of such provision is a fraud on the Constitution. The Supreme Court in the same case in April 2018 opined that despite the title ‘temporary’ under Part XXI of the Constitution, Article 370 is not a temporary provision. 

The Constitution Bench of the Supreme Court also observed the case of Prem Nath Kaul v. State of Jammu and Kashmir (1959) and stated that the effect and application of Article 370 need to be judged on the basis of its object and its terms that are considered in the context of the special features of the constitutional relationship between the State and India. The main basis of the temporary provision under the Article is to determine the relationship between the state and the country by the Constituent Assembly of the state itself. 

However another bench of the Apex Court, in the case of Sampat Prakash v. State of Jammu and Kashmir (1986) , observed that Article 370 can be invoked even after the dissolution of Jammu and Kashmir’s Constituent Assembly. Further, the Supreme Court refused to consider Article 370 as a temporary provision. The five Judge Bench held that Article 370 has never been curbed to be operative and hence it’s permanent in nature. It further opined that if the Article is the permanent feature of our Constitution then it cannot be amended and also will be part of the basic structure.  According to Article 368 , the Parliament can amend any provision of the Constitution but such amendment should not destroy the Constitution and should also not alter any of its basic features.

There were many contradictory arguments relating to Article 370. It was argued that on one hand, the Article was temporary in nature and hence, is no more valid and required, while on the other hand, there was continuous justification regarding repeated use of Article 370 by the Government of India. The Supreme Court further clarified in the Sampat case that this provision with the example of Article 21 . The Court interpreted that, ‘right to life’ under Article 21 of the Constitution means the right to live with human dignity. It also consists of the right to privacy under this article. Similarly, it was held that the term ‘temporary’ in the title of Part XXI does not mean to be temporary. It means any temporary provision may indeed be termed as ‘special’. And thus, the word “Special” was added in the title of the above part by the 13th amendment in the Constitution in 1962. 

Sardar Vallabhai Patel has also declared Article 370 as a special provision for the State of Jammu and Kashmir keeping in view the existing relationship between the Center and the state. It was also observed that the actual temporary provisions in the Constitution are the reservation of Scheduled Tribes (ST), Schedule Cast (SC) in Parliament, and the state assemblies which were initially for just 10 years. English was also once considered as a temporary language for governmental work. Thus, Article 370 is a permanent provision under the Constitution of India. 

Brief of revocation of Article 370 with an amendment to Article 367

On August 05, 2019, Article 370 ceased to be operative under the Constitution of India. The Government of India has revoked the special status of Jammu and Kashmir and took steps to change the regulation of the region. 

Article 370 was the temporary provision under the Constitution. Article 370(1)(c) states that Article 1 and Article 370 is applicable to J&K and Article 370(1)(d) allows the applicability of the other provisions to the state as specified by the President’s order with the concurrence of the Constituent Assembly of J&K. Article 370 was able to be inoperative only if the Constituent Assembly of the state was able to recommend the same to the President and also Article 370 was the temporary provision only till Kashmir has its Constitution by the Constituent Assembly of Kashmir. However, the Constituent Assembly of Kashmir was dissolved in 1957 without making any recommendation for amendment or abrogation of Article 370. Due to this reason, the Indian Supreme Court in the above cases has ruled that Article 370 is a permanent provision of the Indian Constitution. Therefore, the Union Government came with a solution to overcome this problem. They have used the powers of the President under Article 370(1) in order to indirectly amend Article 370(3) via Article 367 .  

Article 367 is also an interpretation clause of the Constitution and added a new sub-clause 4(d). According to this amendment clause, “ Constituent Assembly ” under Article 370(3) must be read as “ Legislative Assembly of the State ”. Due to this now the J&K Assembly was allowed to recommend abrogation of Article 370. But another problem that arose was that Jammu and Kashmir were also under Presidential Rule, therefore, Parliament had made the recommendation under newly modified Article 370 (3) . According to this recommendation to the President to abrogate Article 370 was issued through the resolution by the Home Minister. This enabled the President to declare Article 370 has ceased to operate. 

Hence, Article 370 is currently inoperative under the Constitution.

The state of Jammu and Kashmir is an integral part of India. The state has been given some autonomy under Article 370 in the view of federalism and its unique history of the state joining the Union of India.  Article 370 is not the issue of integration but that of granting autonomy or federalism. After the judgment in 2018, the Apex Court held that Article 370 is a permanent provision since the Constituent Assembly of the State has ceased to exist. In order to overcome all the other legal challenges, the Indian Government rendered Article 370 as ‘inoperative’ and it still has its place under the Constitution of India.  

• https://www.mondaq.com/india/constitutional-administrative-law/785148/all-about-article-370-jammu-kashmir-from-dawn-till-dusk
• https://www.thehindu.com/news/national/full-text-of-document-on-govts-rationale-behind-removal-of-special-status-to-jk/article28821368.ece
• https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/
• https://www.theindiaforum.in/article/article-370-federalism-and-basic-structure-constitution
• https://www.livelaw.in/columns/the-myth-and-reality-of-article-370-147415
• https://www.researchgate.net/publication/334131946_An_Insight_to_Article_35A_and_Article_370_of_the_Constitution_of_India
• https://www.thehindubusinessline.com/opinion/three-reasons-why-the-presidential-order-on-kashmir-is-not-kosher-yet/article28836245.ece .

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Indian Legal Solution

The abrogation of Article 370: Questions of Constitutionality and Constitutionalism

Author: Mr. Parth Thummar, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur

Introduction:

Through 3 legal documents (1) Presidential order withdrawing special status of Jammu and Kashmir (J&K) (2) Presidential order abrogating Article 370 and (3) Passing of an act by Parliament which carved out two union territories from the state of J&K (‘Jammu & Kashmir’ and ‘Ladakh’) changed the destiny of J&K in the month of August 2019 and it resulted in clampdown on civic liberties of citizens and many political leaders were put under house arrest. Many petitions have been filed in SC challenging this move of Union government. 

Was Article 370 a temporary provision?

On 26 th October 1947, the Maharaja Hari Singh signed the instrument of accession to protect J&K from Pakistani riders (who were tribesmen) who had invaded J&K, but this instrument stipulated that Parliament of India will have legislative power only to legislate on three subjects of defense, external affairs and communication with respect to J&K. Earlier in Junagadh where the majority of the population was Hindu and ruler was Muslim, the position of India was that Nawab couldn’t join Pakistan against the wishes of people and hence plebiscite was held. Having adopted such a stance earlier India couldn’t adopt any different position with respect to J&K where a majority of the population was Muslim with the Hindu king. Hence this accession was consented by Lord Mountbatten on a condition that when normalcy returns in the state, a plebiscite will be held. Indian constitution was being drafted when the J&K problem was still persistent. Hence some temporary provisions in the constitution were put to keep India’s commitment that it will not do anything against the wishes of people of J&K. B. N. Rau had who advisor to the constituent assembly had mooted the idea of temporary provision and its final draft was prepared by GopalaswamiAyyangar.

With this temporary provision, only Articles 1 and 370 were applicable to J&K. If parliament wanted to make any part of the Indian constitution dealing with matters other than specified in Instrument of Accession namely defense, external affairs, and communications apply to J&K, then it was required to obtain “concurrence” of the “government” of J&K. Article 370(3) provided the way to amend and repeal any provision of Article 370, and it could be done by President only with the consent of Constituent assembly.

J&K Constituent Assembly was formed on 1 st May 1951. J&K constitution was enacted in 1956 and on 26 January 1957 J&K Constituent Assembly was dissolved permanently. J&K Constituent Assembly was mandated to decide the fate of Article 370 but before its dissolution, it didn’t make any recommendation for repealing or modification of Article 370. Hence unless a new Constituent Assembly was convened, Article 370(3) president was prevented from make any changes in Article 370.

What is the position of SC on Article 370 over the years?

In Prem Nath Kaul v. State of J&K (AIR 1959 SC 749) SC held explicitly what was implicitly seen from the Constituent Assembly debates that “the constitution-makers attached great importance to the final decision of the constituent assembly” and President could exercise its power under Article 370 if Constituent Assembly of J&K had given its approval to him to do so. In Sampat Prakash v. State of J&K (AIR 1970 SC 1118) petitioner argued that Article 370 had ceased to be operative once the Constituent Assembly was dissolved. But the court held that formation of Constitution of J&K didn’t automatically make Article 370 inoperative and the only way Article 370 can cease to operate is by way of presidential order under Article 370(3) on the recommendation of Constituent Assembly of J&K.

In a recent judgment of State Bank of India v. Santosh Gupta ((2017) 2 SCC 538) SC has reiterated the same position but it also held that the Constitution of J&K was subordinate to the Constitution of India.

Is abrogation constitutionally valid?

By virtue of the presidential order of 1954, Article 356 is applicable to the state of J&K. The President of India had issued a Proclamation under Article 356 on 19 th December 2018 after political instability in the state, by vesting to himself all the functions of the Government of J&K. It also stated that all the powers of the legislature of J&K will be exercised by the Parliament. Important clarification that it carried was, any reference in the Constitution to the “Governor” or “Legislature” of J&K was to be taken to mean a reference to the President and Parliament respectively.

3 changes that are mentioned in the introduction part happened thereafter in quick succession changing the constitutional status of J&K.

On 5 th August 2019 in Constitution (Application to Jammu and Kashmir) Order, 2019 issued by Parliament Article 376 of the Constitution was amended to replace any reference to the word “Constituent Assembly” in the Article 370(3) with “Legislative Assembly”. As President’s rule was already imposed in J&K, Parliament was acting as the “Legislative Assembly” of J&K. And this essentially empowered Parliament to amend or repeal Article 370. This is a clear case of clever drafting. Now its for the Supreme Court to decide the constitutional validity of the Abrogation as legal scholars are equally divided on this issue. 

Questions of Constitutionalism:

Constitutionalism is the spirit of the Constitution. It’s the unwritten article protecting all the articles of Constitution from any vice be it in the legislature, executive or judiciary. It is said that almost all the countries in the world now have Constitutions but many lack the idea of Constitutionalism. India is a union of states, which means states are equal state holders in democracy. A move by the central government which relegates states to a position which makes state government mere spectator in the constitutional process may seem constitutional through the letters of Constitution but it may raise questions of Constitutional propriety. Constitutionalism prevents constitutional fraud and replacing the “Constituent Assembly” for “Legislative Assembly” is nothing less than fraud on constitution. This not only stripes the power of the state but also makes people of state voiceless.

Conclusion:

After independence Indian leaders had gone to the extent to suggest that a plebiscite would be held wherein the people of Kashmir would be given the right to decide whether they want to stay with India or join Pakistan, in short, they were at liberty to even secede from the Union of India. The need to hold a plebiscite was obviated.In 1956, when the Constituent Assembly of J&K enacted a Constitution which said that the state would be an integral part of India. India has tried to solve the issue of J&K with political maneuvering and diplomacy using legal tools but what India needs to understand is the problem of J&K is not just political or legal but its more than that. People of J&K were given hope for their future at the time of independence by a promise to place the fate of J&K in their hands. They were given hope that they will be listened to when it comes to issues pertaining to them. But none of that sort happened. What could not be done for years needs to be done at the earliest and that’s holding a plebiscite. People of J&K loves India and they are Indian in all sense and plebiscite will just validate that fact. What J&K wants is to hear. And India needs to decide whether it wants “the Land of J&K” or “the people of J&K”

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• Article 370 Essay

Essay on Article 370

Through this essay on Article 370, one will learn how Article 370 of the Indian Constitution gave special status to Jammu and Kashmir, which is located in the northern part of the Indian subcontinent. This state has been administered by India since 1954.

The Article is drafted in part XXI of the Constitution which is titled as "Temporary, Transitional and Special Provisions". The Article 370 essay in English will give a clear overview of what actually Article 370 is?

A Long Essay on Article 370 in English

The Constituent Assembly of Jammu and Kashmir after being established, has been given the power to recommend which Articles of the Indian Constitution can be applied in the state and also to cancel the 370 altogether. After being advised by the State Constituent Assembly of Jammu and Kashmir, a Presidential order was issued in 1954 that specified the Articles which will be applied to the state. Through this Article 370 essay, one will learn how the Constituent Assembly didn't recommend cancellation of Article 370 before it got dissolved. As a result, the Article was deemed to become a permanent feature of the Indian Constitution.

Different Laws And Rights

The Article 370 in English essay explains how Article 370  was incorporated to keep the residents of Jammu and Kashmir under a Law that is different from the rest of the Country. The different Laws include those relating to citizenship Rights, ownership of property Rights, and different fundamental Rights. Due to these separate Laws, Indians from other states were forbidden to buy any land or property in the state of Jammu and Kashmir.

While the Indian Government was planning out the Constitution of India, they requested the advice of each and every state on the number of constitutions to be incorporated. All the states agreed to have one Constitution in spite of having one for each state except the state assembly of Jammu and Kashmir. The state assembly of Jammu and Kashmir requested that only those Articles of the Constitution will be applied in the state that corresponds to the original instrument to accession and other rules will be incorporated by the state assembly after being formed. But the state assembly got dissolved, and the Article was considered as a permanent feature of the Indian Constitution. This was confirmed by various rulings of India such as the Supreme Court and High Court.

The essay on Article 370 can help one understand the four Provisions of Article 370:

The state was exempted from the complete applicability of the Constitution of India. The state has the power to form its own Constitution.

The power of the central government in this state is limited to three subjects: defense, foreign affairs, and communications.

Some central government’s constitutional power can be extended to the state only with the concurrence of the state government.

The State Government's power to give concurrence is only active until the State Constituent Assembly was convened. After the scheme of powers is dispersed by the State Constituent Assembly, no further extension of powers is possible.

As studied in the Article 370 essay, it is clear that the state of Jammu and Kashmir has a special status and can incorporate its own Constitution, no other states in the Country have these powers.

Impact On Abolition Of Article 370

With the elimination of Article 370 in 2019, people of J&K will no longer have dual citizenship and would be treated similarly to other Indian citizens. Because the citizenship clause is no longer in force, all of the additional benefits and grounds for discrimination associated with the title are effectively gone. 

One of the most significant advantages was that non-J&K residents were unable to purchase land within the state. As a result, persons living in J&K have plenty of resources that they haven't put to good use in order to have a safe place to live. Women were the worst victims of this equation, as they lost their land Rights if they married someone from outside the state. Furthermore, neither she nor her children were eligible to inherit the land. A Kashmiri man, on the other hand, was free to marry any lady from any state and preserve his property Rights. A non-resident of J&K was not permitted to vote in state legislature elections or to run for office. Non-J&K residents were unable to enrol in postgraduate professional courses since state universities in Jammu and Kashmir require a Permanent Resident Certificate (PRC). Furthermore, they were not eligible for any government help or scholarships to utilize while working for the government since permanent residence is necessary, which was not attainable at the time but is today. 

The state was not automatically rendered subject to any Laws passed by Parliament. As a result, disadvantaged populations in the state, such as SCs and STs, were denied the benefits that the Indian Constitution ordinarily provides. Even within the state, Rights such as the Right to education and the Right to information apply. More than that, the middle did not have the authority to declare a financial emergency within the state, but that is no longer the case; Kashmir now follows the same rules and regulations as the rest of the nation.

Short Essay on Article 370

150 words paragraph on article 370.

In this Article 370 short essay, one will gain some basic knowledge of Article 370. Article 370 was incorporated, especially for the state of Jammu and Kashmir. This Article was formed along with Article 35a. The Article vested some important powers in the hands of the State Constituent Assembly. It restricted the Central Government from interfering with the matters of Jammu and Kashmir. One can gain a lot of knowledge from this essay on Article 370.

Article 370 gave the authority to the State Constituent Assembly to incorporate its own Constitution that will give the state several different Laws. Such separate Laws include citizenship Rights, ownership of land Rights, and many others. People from other states are restricted from buying land in this state.

In this short speech on Article 370 in English, it is clear that the state of Jammu and Kashmir is an important state of India and experiences a special status among all the other states.

The 370 Article essay in English will educate a person on how the instrument of accession affected the state of Jammu and Kashmir. Clause 7 of the Instrument of Accession signed by the Maharaja Hari Singh says that the state of Jammu and Kashmir is not compelled to accept any future Articles of the Constitution of India. The state assembly has the power to incorporate its own Constitution. The state assembly will also decide how much power should be vested in the hands of the Central Government. The state of Jammu and Kashmir was experiencing a special status because of the conflict that was prevailing on the land.The Article 370 paragraph in English explains the special status of the Jammu and Kashmir experiences.

FAQs on Article 370 Essay

1. What powers are vested by Article 370?

From the knowledge we have gained from the Article 370 essay, it is clear that the State Constituent Assembly has the power to make its own rules for the state without getting interfered with by the Central Government. The state government has the power to make separate laws in terms of citizenship, ownership of land, etc.

2. In what subjects the Central Government has power over Jammu and Kashmir?

The central Government has power on a total of three subjects that are defense, foreign affairs and communication according to an essay on Article 370. In spite of these three subjects, the central government is restricted to interfere because of the special status of the state of Jammu and Kashmir. If the state government extents some powers then the centre can interfere.

3. What is the background of Article 370?

When India was about to gain independence and the British were departing, they gave all of India's rulers the Right to reside anywhere they wanted. Internally, this resulted in the development of hundreds of provinces. Sardar Vallabh Bhai Patel's efforts resulted in all of those regions agreeing to merge to establish a country. However, one province, Jammu & Kashmir, governed by the then-king Hari Singh, was unwilling to join the union. They didn't want to be combined, and they wanted to keep their identity as a separate province. In October 1947, Pakistan attempted to capture Kashmir by invading it with its army. Hari Singh requested India's assistance in combating the Pakistani troops. India assisted on the condition that Kashmir joins India. Under Article 370 of the Indian constitution, India promised to provide it with special status.

4. What are the benefits and drawbacks of Article 370?

People in Jammu and Kashmir held dual citizenship, meaning they were citizens of both Jammu and Kashmir and India. They had a different flag than we had. In J & K, elections were held every six years. In J&K, criticising the Indian flag was not a crime. The Supreme Court of India's regulations were not applicable to J&K. A Kashmiri girl loses her Kashmiri citizenship if she marries a guy from outside the state. And if she married a Pakistani, he was automatically granted citizenship in J&K. The Right to Information Act did not apply to J&K. In J&K, there were no reservations for minorities. Outside of J&K, no one could acquire land there. J&K was exempt from financial emergencies. Kashmir has never had an issue with overcrowding or overpopulation since no one from outside the state may enter and reside there. Because employment possibilities were few in J&K, many young people turned to terrorism. There was a low GDP and a high level of corruption. China had acquired 10% of Kashmir after independence, whereas Pakistan had grabbed 30% of Kashmir. Only 60% of Kashmir is still in India's possession. Article 370 was enacted as a temporary measure, which allowed India to repeal it and eventually unite J&K with the rest of the states.

5. What is the end result of Article 370?

Article 370's revocation will have a favourable influence. It has the potential to help both the people of J&K and the rest of India. People in J&K will suddenly have a plethora of job options. A number of business opportunities will arise. Girls from J&K can now marry anyone in India. Their gross domestic product will rise. People from other states can now invest in J&K. They can establish manufacturing units, resulting in more work prospects for individuals in J&K. Foreign investors were also looking forward to the repeal of Article 370, therefore we should see an increase in FDI in J&K. Let us all wish for a strong, united, and prosperous India.

The New York Times

Asia pacific | what is article 370, and why does it matter in kashmir.

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Asia Pacific

What is article 370, and why does it matter in kashmir.

By VINDU GOEL UPDATED Updated August 5, 2019

Disputed area

Kashmir, a mountainous valley that borders Pakistan and India, has been a center of conflict between the two nuclear-armed countries since the 1947 partition of British India.

At the time of the partition, the British agreed to divide their former colony into two countries: Pakistan, with a Muslim majority, and India, with a Hindu majority. Both nations covet Kashmir, which is Muslim majority, and occupy portions of it with military forces.

For decades, an uneasy stalemate has prevailed, broken by occasional military incursions, terrorist attacks and police crackdowns. But on Monday, the Indian government decided to permanently incorporate the territory it controls into the rest of India .

The administration of Prime Minister Narendra Modi revoked Article 370 of the Indian constitution, a 70-year-old provision that had given autonomy to the state of Jammu and Kashmir, which includes the Hindu-majority area of Jammu and the Muslim-majority Kashmir valley.

The government also introduced a bill to strip the region of statehood and divide it into two parts, both under direct control of the central government.

But Mr. Modi, a Hindu nationalist, had campaigned for re-election in part by stoking patriotic fervor against Muslim-led Pakistan. He promised the full integration of Kashmir, a cause which his party has championed for decades, and now he is delivering on that pledge.

Pakistan condemned India’s moves. Pakistan’s prime minister, Imran Khan, called on President Trump to follow through on an offer he made two weeks ago to mediate the Kashmir dispute.

What are the roots of the conflict?

In 1947, the sudden separation of the area into Pakistan and India prompted millions of people to migrate between the two countries and led to religious violence that killed hundreds of thousands.

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Gilgit-Baltistan

Controlled by Pakistan

line of control

Controlled by India

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Jammu and Kashmir

Left undecided was the status of Jammu and Kashmir, a Muslim-majority state in the Himalayas that had been ruled by a local prince. Fighting quickly broke out, and both countries eventually sent in troops, with Pakistan occupying about one-third of the state and India two-thirds.

The prince signed an agreement for the territory to become part of India. Regional autonomy, which was formalized through Article 370, was a key inducement.

Despite efforts by the United Nations to mediate the Kashmir dispute, India and Pakistan continue to administer their portions of the former princely territory while hoping to get full control of it. Troops on both sides of the so-called “line of control” regularly fire volleys at each other.

Muslim militants have frequently resorted to violence to expel the Indian troops from the territory. Pakistan has backed many of those militants, as well as terrorists who have struck deep inside India — most brutally in a four-day killing spree in Mumbai in 2008, which left more than 160 people dead.

What is Article 370?

Article 370 was added to the Indian constitution shortly after the partition of British India to give autonomy to the former princely state of Jammu and Kashmir until a decision was made about its rule. It limited the power of India's central government over the territory. A related provision gave state lawmakers the power to decide who could buy land and be a permanent resident -- a provision that irked many non-Kashmiris.

Although it was intended to be temporary, Article 370 says that it can only be abrogated with the consent of the legislative body that drafted the state constitution. That body dissolved itself in 1957, and India's Supreme Court ruled last year that Article 370 is therefore a permanent part of the constitution.

The Modi government disagrees and says the president of India, who is beholden to the ruling party, has the power to revoke the article.

Why did the conflict heat up this year?

The immediate cause was the Feb. 14 suicide bombing by a young Islamic militant, who blew up a convoy of trucks carrying paramilitary forces in Pulwama in southern Kashmir.

Indian aircraft responded to that attack by flying into Pakistan and firing airstrikes near the town of Balakot . The Indian government claimed it was attacking a training camp for Jaish-e-Mohammed, the terrorist group that claimed responsibility for the bombing.

The next day, Pakistani and Indian fighter jets engaged in a skirmish over Indian-controlled territory , and Pakistani forces downed an Indian aircraft — an aging Soviet-era MiG-21 — and captured its pilot. It was the first aerial clash between the rivals in five decades .

Pakistan quickly returned the pilot , easing the diplomatic tensions. But Mr. Modi exploited a wave of a nationalist fervor over the Pulwama attack as part of his re-election campaign that helped his Bharatiya Janata Party win a sweeping victory .

Pakistan’s prime minister, Imran Khan, was elected last year with the backing of his country’s powerful military, and he wants to show that he can stand up to India, even as his country’s economy is so weak that he sought bailouts from Saudi Arabia and China.

Will the United States and other global powers get involved?

On July 22, Mr. Trump hosted Mr. Khan at the White House. Although the meeting was focused on how to end the war in Afghanistan, Mr. Trump told reporters that Mr. Modi had asked him to help mediate the Kashmir dispute . Mr. Khan welcomed his involvement. The Indian government denied making any mediation request and has long insisted on direct negotiations with Pakistan to resolve the dispute.

Under Mr. Trump, American foreign policy has shifted away from Pakistan, a longtime recipient of American aid, toward India, which the administration views as a bulwark against China’s rising influence in Asia.

China, meanwhile, has become a close ally and financial patron of Pakistan . The Chinese government recently urged India and Pakistan to settle their conflicts through bilateral discussions. China shares a border with Jammu and Kashmir state, and India and China still do not agree on the demarcation line.

What is likely to happen next?

The constitutional changes, issued through a presidential order, could face legal challenges. Last year, India’s Supreme Court ruled that Article 370 could not be abrogated because the state-level body that would have to approve the change went out of existence in 1957.

“My view is that this presidential notification is illegal,” said Shubhankar Dam, a law professor at the University of Portsmouth in Britain and the author of a book on executive power in India. “The question is one of jurisdiction: Does the government of India have the power to do this?”

Pakistan, for its part, said it will “exercise all possible options to counter the illegal steps” taken by India.

Mr. Modi’s moves to integrate Kashmir into India are likely to be popular in much of the country. But there is widespread panic in Kashmir, where there have been decades of protests against Indian rule.

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