essay on abolition of article 370

Essay on Article 370 of Indian Constitution

Article 370 of the Indian Constitution provided special rights to the Indian state of Jammu and Kashmir. It gave most of the power to the government of this state. Centre was left with limited power over J&K.

Article 370 has recently been scrapped making it a historic event which is expected to change the face of the state for good. This move has received mixed reactions from political parties and general public though it has largely been appreciated.

Long and Short Essay on Article 370 of Indian Constitution in English

Here are long and short essay on Article 370 of the Indian Constitution of varying lengths to help you with the topic in your exams. These Article 370 essay are written in simple English language to easily convey the information, yet it does so effectively. These Article 370 essays will let you have a deeper understanding of article 370, its removal and repercussions.

After going through the following essays you will know about Article 370 and its provisions; history of Article 370; advantages and disadvantages of Article 370; how was it revoked; what will be the consequences of scrapping Article 370; what bills were passed for its revokal, etc.

Short Essay on Article 370 – (200 Words)

Article 370 that came into effect in the Indian state of Jammu and Kashmir in the year 1949 was supposed to be a temporary provision; however, it continued for decades even though many political leaders and other prominent people in the county demanded its revocation from time to time.

The article exempted J&K from the Indian Constitution. The state attained the right to make its own laws related to any matter except foreign affairs, communications and defence.

The state government thus went on to draft a separate constitution. It also came up with a separate flag. The Fundamental Duties mentioned in the Indian Constitution were not applicable in J&K. It had its own set of rights and duties.

The condition of the state hasn’t been very good ever since the enforcement of Article 370. Life of people in the Kashmir region has especially been miserable. The place is prone to terrorist attacks.

Article 370 has been seen as a hindrance in the development of the state. It is also known to be a cause of growing corruption and terrorism in the state.

As per the constitutional order passed by Indian President Ram Nath Kovind on 5 th August 2019, Article 370 stands ineffective. The decision has been taken to improve the condition of J&K and its citizens.

Essay on Article 370: Enforcement – (300 Words)

Introduction

Article 370 of the Indian Constitution was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. However, soon after it came to be known as a permanent feature of the Indian Constitution. It has remained in effect in J&K for decades.

The Origin of Article 370 of the Indian Constitution

Article 370 was drafted by Sheikh Abdullah in the year 1947. Abdullah had been appointed as the Prime Minister of Jammu and Kashmir by Pundit Jawahar Lal Nehru and Maharaja Hari Singh of Kashmir.

Abdullah wanted complete autonomy for J&K and demanded that Article 370 must not remain a temporary provision. However, the Centre deemed this demand unreasonable and did not approve of it.

Special Status Given to Jammu and Kashmir

As Article 370 came into being, the Constituent Assembly of Jammu and Kashmir gained special power wherein it got the right to recommend the articles of the constitution that should be enforced on the state. It even got the power to annul Article 370 altogether.

Article 35 A and Article 370 together stated that a different set of laws apply for the residents of the state of J&K. The Indian Parliament could only exercise laws related to finance, defence, communications and foreign affairs in the state.

It required the approval of state government for applying all the other laws. The residents of J&K enjoyed completely different laws when it came to ownership of property, laws related to citizenship and fundamental rights.

As per the laws enforced by the state, the Indian citizens from other parts of the country were denied the right to purchase property in Jammu and Kashmir.

The residents of J&K fear that the scrapping of Article 370 may hamper their local business and thus be a threat to their livelihood. Adapting to the changes that are likely to follow this big decision also seems to be a cause of concern for the residents of J&K. Their concerns are genuine. We hope the condition of the place improves henceforth.

Essay on Article 370: Advantages and Disadvantages – (400 words)

Article 370 of the Indian Constitution that gave special power to the state of Jammu and Kashmir was annulled on 5 th August 2019. The decision taken by the Centre has been appreciated by several political parties, leaders, celebrities and majority of general public. However, many others have criticized it outright. Article 370 had few advantages and several disadvantages.

Advantages of Article 370 of the Indian Constitution

Here is a look at the advantages of Article 370:

1) Article 370 is advantageous for the citizens of J&K. The state gives priority to the interest of its local citizens. There is less competition in the state and greater opportunities for its citizens.

2) J&K boasts of its local handicraft items. The government of this state has kept its culture and local businesses alive. It has always encouraged local businesses over foreign brands.

This is the reason why several local brands are running in the state. This means more work, greater growth opportunities and good income for the locals.

Disadvantages of Article 370 of the Indian Constitution

Here is a look at the disadvantages of Article 370:

1) The state of J&K hasn’t developed as much as the other parts of the country. This is particularly true when we look at the medical facilities here. The condition of the hospitals and healthcare centres in the state are not that good.

2) The law and order in J&K is weak because the centre is not allowed to intervene. This has given rise to terrorism in the state. Terrorism is a major concern here and nothing much is being done to fight it.

3) Corruption in the state is high due to its alienation from the centre. There is no check on the government of J&K. It makes its own laws and works as per its convenience.

4) Article 370 prevented the implementation of Right to Education in the state. This is why students were forced to move to other states.

5) Outsiders cannot establish business in J&K. Professionals and industrialists are not allowed to settle here. This is a major hindrance in the growth and development of the state.

6) This provision is anti- women in nature. It has led to extreme gender bias in the state.

The disadvantages of Article 370 of the Indian Constitution clearly outweigh its advantages. The atmosphere of tension in the state is a clear evidence of the same. Scrapping of Article 370 seems like a ray of hope for the state that has been gripped by terrorism since long. We hope it sees better times ahead.

Long Essay on Article 370 – (500 words)

Article 370 is a temporary provision in the Constitution of India. It provides special autonomous status to the Indian state of Jammu and Kashmir.

The provisions of the Indian Constitution that are applicable to other states of India are not applicable to J&K.

The article was adopted in November 1956 and was enforced in the state in January 1957 by Sheikh Abdullah.

Special Provisions in Jammu and Kashmir as per Article 370

Some special provisions were made in Jammu and Kashmir as Article 370 came into force in the state. These include:

• J&K acquired different national flag.
• Insulting the national flag and national symbols is considered a crime in India. It is a punishable offence. But this rule did not apply in J&K.
• The highest court orders in India did not apply in J&K.
• Jammu and Kashmir citizens enjoyed dual citizenship.
• Women in Kashmir had to abide by the Sharia law.
• The tenure of the Assembly of J&K was 6 years unlike other Indian states in which the Assembly tenure is 5 years.
• RTI, RTE and CAG were not applicable in Kashmir.
• The J&K citizenship of a woman who married a person from another Indian state ended. On the other hand, if a woman from the state married someone from Pakistan, he acquired J&K citizenship.
• If a Pakistani married a Kashmiri girl, he acquired Indian citizenship.
• Article 370 did not allow people from other states to purchase property in J&K.
• The minority group in Kashmir that consists of Hindus and Sikhs did not get 16% reservation.

Changes after the Revocation of Article 370

Now that Article 370 has been revoked, Jammu and Kashmir will no longer enjoy the autonomous status. All the special powers that came with this article have been annulled. Here are some of the other changes that are being brought about:

• All the residents of J&K shall be entitled to single citizenship only.
• Article 360 that is enforced during financial emergency is now applicable in J&K.
• People from other states shall be able to purchase property in J&K.
• Duration of Legislative Assembly has been changed to 5 years.
• RTI will be applicable in J&K.
• Minorities will be eligible for 16% reservation.
• Children will benefit from the Right to Education.
• Directive Principle of State Policy shall be applicable.
• J&K will not have a separate flag.

The Atmosphere in J&K as Article 370 Revoked

J&K’s prominent leaders, Omar Abdullah, Sajjad Lone and Mehbooba Mufti were under house arrest as the bill for abolition of Article 370 was passed in the Rajya Sabha.

Internet and mobile services in Kashmir’s Srinagar district were suspended and a ban imposed on all public gatherings.

With so many changes underway after the revocation of Article 370, it seems like J&K will finally experience peace and prosperity. This is just the first step towards the betterment of the state.

There are miles to go! Whether the decision taken by Centre is right or wrong is still being debated. We hope it proves to be beneficial for the state as well as the country as a whole.

Long Essay on Article 370: Revocation – (600 words)

Article 370 was enforced by Sheikh Abdullah on 26 th January 1957. The article gave special power to the Indian state of Jammu and Kashmir. This was a temporary provision.

However, it remained in force for decades. Even though many political leaders and other prominent people in the country suggested its revocation from time to time, it remained intact; however, it has finally been annulled.

Indian President, Ram Nath Kovind issued constitutional order to revoke Article 370 and apply all the rules and provisions of the Indian constitution to Jammu and Kashmir. This historic move was made on 5 th August 2019.

Bill to Revoke Provisions of Article 370

Union Home Minister, Amit Shah, moved a resolution in Rajya Sabha to introduce a bill scrapping all the provisions of Article 370. This was approved by President Ram Nath Kovind.

Shah also introduced bills seeking bifurcation of the State into Jammu and Kashmir as a Union Territory with an Assembly and Ladakh as a Union Territory without a legislature.

The opposition benches protested against this resolution; however, the decision has been made. Revoking Article 370 of the Indian Constitution had been a major part of BJP’s agenda. Shah’s announcement was thus received with elation by the BJP leaders.

Mixed Reactions on Revocation of Article 370

While many political parties opposed the decision to scrap Article 370 of the Indian Constitution, several others extended their support to the BJP government.

Parties that Supported the Decision

Among those that showed support to this decision were the Aam Aadmi Party,   Bahujan Samaj Party, Shiv Sena, AIADMK, Shiromani Akali Dal, YSR Congress, Telugu Desam Party, Biju Janata Dal, BPF and AGP. All these parties backed the Centre’s decision.

Many of them mentioned that they awaited this move since long and welcome the decision wholeheartedly. They now look forward to peace and development in J&K. The decision of scrapping Article 370 has been termed as bold and courageous.

BSP member, Satish Chandra Misra was among the first ones in the Rajya Sabha to support this move. Mayawati also extended support to the bifurcation of Jammu and Kashmir.

AIADMK mentioned that their leader, Jayalalithaa had always wanted this. Shiv Sena members expressed their joy and support by celebrating outside their party head office.

BJD members said that with this decision, Jammu and Kashmir has become an integral part of the country and they are glad about it.

Parties that Opposed the Decision

The parties those opposed the Centre’s decision to revoke Article 370 include Congress, Trinamool Congress, Nationalist Congress Party, Janata Dal (United), Rashtriya Janta Dal, Left, National Conference, DMK and People’s Democratic Party. All these parties condemned and criticised the resolution.

Congress members mentioned that this was a “catastrophic step” and it should be seen as a “black day” in the constitutional history of our country. It further said that this decision is a publicity stunt by BJP to fetch more votes. Likewise, Left mentioned that it is an attack on the Indian Constitution.

Members of People’s Democratic Party expressed their anger over the decision by shouting slogans and tearing copies of Indian Constitution. National Conference called the decision shocking and unilateral. Trinamool Congress also expressed its objection against the Centre’s decision.

DMK went on to say that this was simply the murder of democracy. It said that BJP is forcing its agenda and that it has no respect for the sentiments of the Jammu and Kashmir residents.

Revocation of Article 370 of the Indian Constitution is indeed a big decision. A major change in J&K is likely underway now. We hope things change for good for this beautiful state which has long struggled for peace and justice. The Centre must make special efforts to resurrect J&K and make it a better and safer place to live.

Related Information:

Essay on Article 35A of Indian Constitution

Speech on Article 370 of Constitution of India

Essay on Article 15 of Indian Constitution

Speech on Constitution of India

Speech on National Constitution Day

Essay on National Constitution Day

Essay on Constitution of India

Essay on Section 377 of Indian Penal Code

Find More Information about Indian Independence Day:

Indian Independence Day  |  Independence Day Essay  |  Importance of Independence Day in India Essay  |  Independence Day Speech  |  Speech on Independence Day for Teachers  |  Independence Day Speech for Principal  |  Slogans on Independence Day  |  Paragraph on Independence Day  |  Facts about Independence Day of India  |  Speech on 15 August 1947 by Nehru  |  Independence Day Quotes  |  Live Celebration Ceremony of 69th Independence Day of India at Red Fort Delhi  |  President’s Address to the Nation on the eve of Independence Day

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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.

Home > Cases > Challenge to the Abrogation of Article 370 > Abrogation of Article 370 | Judgement Summary

Abrogation of Article 370 | Judgement Summary

Judges: D.Y. Chandrachud CJI , S.K. Kaul J , Sanjiv Khanna J , B.R. Gavai J , Surya Kant J

Gauri Kashyap and R. Sai Spandana | 11th Dec 2023

• Live Streaming of Constitution Bench Judgement Pronouncement - 11 December 2023

On 11 December 2023, five senior-most judges of the Supreme Court upheld the Union government’s action to abrogate Article 370, which granted special status to Jammu and Kashmir (J&K). The Court further refused to comment on the constitutionality of the reorganisation of J&K state into two Union Territories: Jammu and Kashmir and Ladakh.

Chief Justice D.Y. Chandrachud on behalf of himself, Justices B.R. Gavai and Surya Kant, wrote 352 pages of the 476 page judgement. Justice S.K. Kaul wrote 121 pages and Justice Sanjiv Khanna wrote a concurring judgement of three pages.

Article 370 of the Constitution  of India provided the State of Jammu and Kashmir with a special constitutional status. The provision substantially limited Parliament’s power to legislate for the State compared to other states.

On August 5, 2019, the Union government diluted Article 370, revoking Jammu and Kashmir’s special status. First, President Ram Nath Kovind issued  presidential order CO 272 . This Order allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly.

Since J&K was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370 through a  Statutory Resolution  under Article 370(3).

On August 6, 2019, President Kovind issued a Proclamation,  CO 273 , putting the Rajya Sabha’s recommendation into effect. All clauses of Article 370 ceased to operate, except Clause 1 which was amended to state that the Constitution of India applies wholly to the State, removing the special status awarded to Jammu and Kashmir.

On August 9, Parliament passed the  Jammu and Kashmir Reorganisation Act, 2019 . This Act bifurcated the State of Jammu and Kashmir into two Union Territories—J&K and Ladakh.

Petitions were filed challenging the constitutionality of the dilution of Article 370 and the bifurcation of the State into two Union Territories.

On August 28, 2019, a 3-Judge Bench led by former CJI  Rajan Gogoi  referred the case to a 5-Judge Constitution Bench.

On October 1, 2019, 5-Judge Constitution Bench of the Court comprising Justice  N.V. Ramana ,  S.K. Kaul ,  R. Subhash Reddy ,  B.R. Gavai  and  Surya Kant  decided to hear the case from November 14th, 2013. The petitioners sought the case to be placed before a larger Bench. On March 2nd, 2020, the Bench refused to refer it to a larger Bench.

On July 3, 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud. The Bench assembled on July 11, 2023 and decided to hear the challenge from August 2, 2023.

Jammu and Kashmir did not retain sovereignty

CJI Chandrachud relied strongly on a proclamation by Yuvraj Karan Singh’s on 25 November 1949, the day before India’s Constitution was adopted. The proclamation stated that the provisions of the Indian Constitution would govern the relationship between the J&K and India. This, the Chief noted, negated two clauses of the Instrument of Accession (IoA). Paragraph 7 of the IoA stated that the IoA was not a symbol of acceptance of “any future Constitution of India” and Paragraph 8 stated that the IoA would not affect the sovereignty of the Maharaja. 

The Yuvraj’s proclamation said that “the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.” 

Further, CJI Chandrachud wrote that there is much evidence in Article 370 and the J&K Constitution to show that a merger agreement was not necessary for Kashmir to surrender its sovereignty. Article 370(1) applied Article 1 of the Constitution (where J&K was listed as a Part III State) with no modifications. Section 3 of the J&K Constitution explicitly states that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Section 147 prohibited any amendments to Section 3, further making the provision absolute. Therefore, the Constitution of India, he said, “became the supreme governing document of the land.” Further, the Preamble to the J&K Constitution shows a “clear absence of…a reference to sovereignty.” 

The Chief also disagreed with the petitioners’ argument that the autonomy enjoyed by J&K was distinct from other states. In asymmetric federalism, one state may enjoy a greater degree of autonomy than another. This does not mean that it has a different kind of autonomy. He warned that if the Court held that J&K enjoys an elevated kind of sovereignty, it would mean that “other states which had special arrangements with the Union also possessed sovereignty.”

Justice Kaul differed on the question of sovereignty. He held that as per the Court’s decision in Prem Nath Kaul v Union of India (1959) , J&K had retained some part of its sovereignty. Article 370, he said, recognised J&K’s internal sovereignty by recognising the Constituent Assembly of the state. 

Justice Khanna concurred with Justice Kaul’s reasoning. 

Article 370 is a temporary provision

First, the Chief relied on the fact that the Constitution framers placed Article 370 with the temporary and transitional provisions contained in Part XXI. Then, he pointed out that the IoA made it “abundantly clear” that Article 1 which stated that “India that is Bharat shall be a Union of States” applied in its entirety to J&K. When the Constitution was adopted on 26 January 1950, J&K was a Part B State. CJI Chandrachud wrote that with the introduction of the Seventh Schedule, the distinction between Part A, B and C states was obliterated, making J&K an integral part of India. 

Petitioners had also argued that Article 370 was only temporary while the Constituent Assembly of J&K existed. As the members chose to retain the provision, it transcended to permanency, with the only authority that could have abrogated it having dissolved. CJI Chandrachud held that the words “recommendation of the Constituent Assembly…shall be necessary” should be read with the historical context in mind, as it indicates that this was merely a “ratification process as decided by the Ministry of States.” The recommendation, he said, is not binding on the President. 

Further, the Chief held that the provision was introduced to “deal with the special circumstances in the State.” At the time of the dissolution of the Constituent Assembly, these special circumstances persisted, requiring the continuation of Article 370. 

The Chief Justice also held that the dissolution of the Constituent Assembly could not limit the powers of the President to abrogate Article 370. The President’s power, he explained, was only limited under Article 370(1), which meant that they could not “make radical changes to the provisions of the Constitution of India as it applies to Jammu and Kashmir.” If the President exercises his power under 370(3) to abrogate the provision, no such limitation under 370(1) would survive, all provisions of the Constitution of India would apply to J&K, and integration would be complete. “Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to freezing of the integration contrary to the purpose of introducing the provision,” CJI Chandrachud wrote. 

Justice Kaul agreed, citing that “Article 370’s historical context, its text, and its subsequent practice” indicates its temporary nature. The President’s power can be exercised post-dissolution “in line with the aim of full integration of the State,” he wrote. 

Constitutional validity of proclamations under President’s Rule

CJI Chandrachud first clarified that the Court would not deal with the President’s powers to invoke President’s Rule under Article 356, as the core challenge pertained to “actions taken during the subsistence of President’s Rule and not independently to President’s Rule by itself.” He then dealt with the petitioners’ claim that the President cannot use their powers under Article 356 to “take irrevocable decisions” and “unsettle constitutional safeguards in favour of States.” 

First, the Chief Justice relied on Justice B.P. Jeevan Reddy’s decision in S.R. Bommai v Union of India (1994), where he held that when President’s Rule is imposed, it was a “necessary consequence” that the government is removed, to avoid simultaneous governance by the Union and state governments. The federal structure then becomes “diluted because the Union is empowered to take over the executive and legislative powers of the State.” Keeping in mind the intent of Article 356, which is to “restore the functioning of the constitutional machinery in the state,” actions taken by the President during the proclamation should be “geared” towards fulfilling this objective. CJI Chandrachud, wrote that “it will be too stringent an approach to suggest that every action of the President and Parliament must be necessary to further the objects of the proclamation.”

Further, the Chief stated that there are “hundreds if not thousands” of decisions that the President and Parliament must take, on behalf of the state legislature, to ensure effective day-to-day functioning in the state. Every such action, he held, cannot be open to judicial review, as it would “lead to chaos and uncertainty” and “put the administration in the State at a standstill.”

Any action taken in the exercise of this power, he said, can be repealed or modified by the state legislature after it resumes its functioning. Under Article 357(2) “federating units would have the power to reverse or modify the changes which were brought by the Union during the subsistence of the Proclamation.” 

Holding that judicial review is only applicable to actions taken after President’s Rule has been proclaimed, the Chief laid down a standard to assess the grounds for such review. First, the “exercise of power by the President under Article 356 must have a reasonable nexus to the object of the Proclamation.” Second, such an exercise of power will not be considered to be invalid “merely on the ground of ‘irreversibility’ of the actions.” Third, in the challenge to an action taken under President’s Rule, the onus lies on the petitioners to establish that a prima facie assessment of the case shows a “mala fide or extraneous exercise of power.” 

If a case of mala fide is made on a preliminary assessment, the onus then falls on the Union to prove that a reasonable nexus exists between the action taken and the goal of proclaiming President’s Rule. Finally, the President’s exercise of power for the day-to-day administration of the state is “not ordinarily subject to judicial review.”

Justice Kaul concurred, stating that the President has the power to make “irreversible changes, including the dissolution of the State Assembly.” He noted that the President’s powers are kept in check by “judicial and constitutional scrutiny.”

Does Parliament enjoy both law-making and non-law-making powers of the state legislature under President’s Rule?

Article 356(1)(a) states that the President may declare that the “powers of the Legislature of the State” shall be exercised by or under the authority of Parliament. Petitioners had suggested that there is a difference between “law-making and non-law-making powers” of the state legislature, arguing that only legislative and not constituent power is transferred to Parliament under President’s Rule. 

CJI D.Y. Chandrachud held that no such distinction exists under Article 356. He noted that interpreting the phrase “powers of the legislature” to allow Parliament to exercise all constitutional powers of the Legislative Assembly would limit the power of the state. “However,” he continued, “the Constitution recognises such reduction of federal power when the Proclamation under Article 356 is in force.” 

Is CO 272 of 2019 valid?

Next, the Chief considered the validity of the process by which Article 370 was abrogated. The Union abrogated the provision through two Constitutional Orders (COs) CO 272 and 273 . 

In CO 272, the Union amended Article 367 (an interpretation clause) by replacing the words “Constituent Assembly” in the proviso to Article 370(3) with “Legislative Assembly.” The Union had asserted that this method was valid under Article 370(1)(d) which allows for provisions of the Indian Constitution to apply to J&K, subject to exceptions and modifications by the President.

This, the Chief held, was invalid and unconstitutional. The reason was twofold. First, an amendment to Article 370 could only be made under the process prescribed by Article 370(3) and not through an amendment to an interpretation clause of the Constitution. Second, the “concurrence” of the state government was a necessary component under Article 370(1)(d). 

Previously, in Maqbool Damnoo v State of Jammu & Kashmir (1972), a similar route was taken by the Union to replace the phrase “Sadar-i-Riyaasat” in Article 370 with the word “Governor” by amending Article 367. The majority held that it was not an amendment to Article 370 but rather a clarification to reflect the state of affairs at the time. Similarly in certain other COs where changes were made to Article 370 using the Article 367 route, they did not modify the essence of the Article in a “manner that is appreciable or significant.” Therefore, the Union could not use these examples to claim that CO 272 was valid. 

With CO 272, the Court said, it was clear that “while the change sought to be made by paragraph 2 of CO 272 may appear to be a modification or amendment of Article 367 at first blush, its effect is to amend Article 370 itself.” 

However, the Chief went on to hold that this did not render CO 272 as a whole as unconstitutional because the President had the power under Article 370(1)(d) to make “all or part of the Constitution” applicable to J&K. Petitioners had argued that 370(1)(d) “only contemplates a piece-meal approach” and that the entire Constitution can only be applied by exercising the power under Article 370(3), by abrogating Article 370. The Court held that applying all the provisions of the Constitution of India to J&K under 370(1)(d) had the “same effect” as declaring that Article 370 ceases to exist using the power under 370(3). 

Further, the consultation of the state government was not essential under 370(3) as the President had “unilateral” power to declare that Article 370 ceased to exist. In other words, the President was not mala fide in issuing CO 272. To show that it was mala fide, the Court said, “it is necessary to show that the power was exercised with an intent to deceive.” Deception can “only be proved if the power which is otherwise unavailable to the authority or body is exercised” or if the available power is “improperly exercised.” Since concurrence under 370(3) was not necessary in the first place to apply the whole Constitution to J&K, there was no improper exercise of powers when the President took the concurrence of the Union of India (on behalf of the State Government). 

Therefore, the Court held that CO 272 is valid to the extent that it applies all the provisions of the Constitution of India to J&K.

Justice Kaul , in his concurring opinion, agreed that it was not permissible to use the interpretation clause (Article 367) to amend Article 370. Therefore, he also held that paragraph 2 of CO 272 was invalid to the extent that it modified Article 367 to effectively amend Article 370. However, since the President had powers to apply the whole of the Constitution to J&K under Article 370(1)(d), the rest of CO 272 was valid and constitutional. 

CO 273 was not issued with malicious intent

In CO 273, the President exercising powers under Article 370(3) declared that “…all clauses of the said Article 370 shall cease to be operative….”

CJI Chandrachud wrote that while deciding if the power under 370(3) must be exercised, the President has to determine whether “the special circumstances which warranted a special solution in the form of Article 370 have ceased to exist.” This was a “policy decision which completely falls within the realm of the executive.” However, the Chief wrote that the President’s decision was subject to review if his intention was mala fide . 

The Chief found that the President’s intention was not mala fide. The reasoning he advanced was that the Union and the state have integrated “through a collaborative exercise” through a “slew” of Constitutional Orders since 1950. The President made the whole of the Indian Constitution applicable to J&K under Article 370(1)(d) to ensure its complete integration into India. 

The Constitution of J&K stands inoperative

The Bench held that the Constitution of J&K was always subordinate to the Constitution of India. The effect of CO 272 and 273, CJI Chandrachud wrote, was that the whole of the Constitution of India applied to J&K just as it did to other states and Union Territories. 

Under the Constitution of J&K, only certain provisions of the Indian Constitution applied to J&K. “The implicit but necessary consequence of the application of the Constitution of India in its entirety to the State of Jammu and Kashmir is that the Constitution of the State is inoperative,” the Chief wrote. 

Reorganisation of J&K: procedurally valid, substantive question left open

The J&K Reorganisation Act, 2019 was enacted by Parliament under Article 3 of the Constitution. During the hearing, the petitioners contended that the Act was unconstitutional for two main reasons. First, it was enacted without fulfilling the prerequisites of Article 3. Second, it changed the character of a state entirely by “reducing” it to two Union Territories. To determine the scope of Article 3, the Court delved into the history of states and union territories, the need for union territories and the reason for introducing Article 3.

The Chief wrote that states and “constituent units” at the time of independence mirrored the systems of bifurcations that existed during the British rule. Article 3, he said, was drafted to “subserve an arrangement in place until a reclassification which was suited to the needs of the local populace and which was based on a careful evaluation of administrative, cultural, linguistic, financial, and other relevant considerations rather than on the expediency of the colonial government.” 

Federalism which comprises two units of Union and state, he said, was part of the basic structure of the Indian Constitution. States are not dependent on the Union for their autonomy. However, Union Territories are not ‘viable administrative units’ and do not have the means to sustain on their own. They also do not have the degree of autonomy that states do. 

CJI Chandrachud discussed the difference between extinguishing a state and the character of a state. Under Article 3, new states can be formed by the separation of territory from any state, by uniting two or more states or parts of states, by uniting any territory to a part of any state or by increasing the area of any state, by diminishing the area of any state, altering the boundaries of any state, or altering the name of any state. However, an administrative unit could lose its “character” if it is converted to a Union Territory without retaining any part of its statehood. 

In the present matter, the majority held that there was no need to go into the question of whether or not J&K lost its “character” because of the reorganisation into two Union Territories. The judges relied on the submission of Solicitor General Tushar Mehta who had told the Court that J&K’s statehood would be restored in due time and this would not impact the Union Territory of Ladakh. Therefore, they left the question of determining the contours of Article 3 open to be determined in a different case where the question emerges. 

Justice Kaul agreed with the Chief’s reasoning. 

On the procedure under which the Reorganisation Act was introduced, the Bench held that under Article 3, the Union ought to have sent the proposal to the state legislature for their views. Since the Union Parliament had assumed the role of the state legislature of J&K at the time, the Union sought the views of both houses of Parliament which agreed with the Reorganisation Bill. The question to consider was whether the Union accepting its own views was valid. To answer this question, the Chief held that it was necessary to test if the Union was acting mala fide. As established before, there was no malicious intention on the part of the Parliament as its powers under Article 356 were not limited to law-making powers. It could give consent to the reorganisation of the state. 

Next, the second proviso to Article 3 provided that when it comes to altering J&K, the consent of the state legislature must be sought. However, with CO 272, the entire Constitution applied to J&K without exceptions and modifications. Thus, “the issue of whether the second proviso to Article 3 could have been suspended in the exercise of the power under Article 356(1)(c) no longer survives” the Chief held.

The Court directed that J&K’s statehood be restored as soon as possible. They also noted that the legislative assembly elections of J&K need not await the restoration of statehood, and issued a direction to conduct elections before 30 September 2024. 

Justice Kaul: Set up a truth and reconciliation commission to address human rights violations in J&K

In the concluding pages of his judgement, Justice Kaul penned an emotional epilogue. He recommended that the Union set up a “truth and reconciliation Commission” just like South Africa did in its post-apartheid era. “This Commission should be set up expediently before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation,” he wrote. 

He acknowledged that to ask the Union to set up the Commission was beyond the scope of the Court. However, he reasoned that transitional justice was a facet of transformative constitutionalism and “encompassed responsibility of both State and non-State actors concerning human rights violations.” The Court, he said, had previously taken steps in cases such as Vishaka v State of Rajasthan (1997) to provide flexible solutions to fundamental rights violations. 

He cautioned that the Commission must not turn into a criminal court. Rather, he recommended that the Commission “follow a humanised and personalised process enabling people to share what they have been through uninhibitedly.” 

Home / clat pg / Article 370 of Constitution of India: Analysis of the Controversy surrounding Autonomy in Jammu and Kashmir

Article 370 of constitution of india: analysis of the controversy surrounding autonomy in jammu and kashmir, introduction.

In August 2019, the Indian government, led by the Bharatiya Janata Party (BJP), made a historic decision to revoke Article 370 of Constitution of India , which granted special autonomy to Jammu and Kashmir.

This move hailed as a “correction of a historical blunder,” sparked intense debate and controversy in India and internationally. This comprehensive article will delve into the reasons behind the revocation, the significance of Article 370 , its legal implications, and the ground realities it has brought about.

Origins of Article 370 of Constitution of India

Article 370 was introduced into the Indian Constitution in 1949, primarily in response to the unique circumstances surrounding Jammu and Kashmir’s accession to India after gaining independence from British colonial rule in 1947.

The then-Maharaja of Jammu and Kashmir, Hari Singh, initially sought to remain independent or join Pakistan. However, the invasion by tribal militias supported by Pakistan forced him to accede to India in October 1947.

To address the distinct circumstances of J&K, Article 370 was incorporated into the Constitution, providing temporary provisions for the state’s governance within the Indian Union. This article recognized Jammu and Kashmir as a “special category” state, granting it considerable autonomy.

Article 370 of Constitution of India

Article 370 granted Jammu and Kashmir substantial independence. The state had its own Constitution, a separate flag, and considerable powers over various aspects of governance, including law, order, and citizenship.

Limited Indian Jurisdiction

Under Article 370, Indian laws were applicable in Jammu and Kashmir only if the state government permitted them. This meant that only certain central laws were applied in the region upon the recommendation of the state legislature.

Special Status

Jammu and Kashmir enjoyed a unique status within the Indian Union, which made it distinct from other states and union territories. Delhi Agreement (1952): The Delhi Agreement, signed between Prime Minister Jawaharlal Nehru and Jammu and Kashmir Prime Minister Sheikh Abdullah, clarified the relationship between the state and the Indian Union. It granted J&K greater autonomy while reaffirming its accession to India.

What is the Kashmir Conflict?

Kashmir’s complex history and dispute.

Kashmir, a picturesque Himalayan region, has been a longstanding point of contention between India and Pakistan. Both countries claim the territory as their own. The roots of this dispute trace back to the end of British colonial rule in 1947, when the princely state of Jammu and Kashmir decided to join India. This decision led to a war between India and Pakistan, resulting in a ceasefire line that divided the region into Indian-administered and Pakistani-administered territories.

Decades of Insurgency and Violence

The Indian-administered part of Kashmir, known as the state of Jammu and Kashmir , has witnessed three decades of violence and conflict due to a separatist insurgency against Indian rule. This insurgency, fueled by demands for greater autonomy or even independence, has resulted in a significant loss of life and suffering in the region.

The Significance of Article 370

Granting autonomy to jammu and kashmir.

Article 370 of the Indian Constitution is a unique provision that grants the state of Jammu and Kashmir a considerable degree of autonomy. Under this article, the state had its own Constitution, a separate flag, and the power to make its laws, except in areas such as foreign affairs, defense, and communications, which remained under the central government’s control.

This special status allowed Jammu and Kashmir to formulate rules related to permanent residency, property ownership, and fundamental rights, even restricting non-Kashmiris from buying property or settling in the state.

Impact on India’s relationship with Kashmir

Article 370 played a pivotal role in shaping India’s relationship with Kashmir, mainly since it was the only Muslim-majority region to choose to join India during the partition. The provision symbolized the unique political arrangement between the state and the Indian Union.

Why did the Government revoke Article 370?

Bjp’s opposition to article 370.

The decision to revoke Article 370 was a longstanding goal of BJP. They argued that this provision needed to be scrapped to fully integrate Kashmir into India, placing it on an equal footing with other states. The BJP included this pledge in its 2019 election manifesto , and after securing a massive electoral mandate, the government decided to implement it.

Integration and Economic Motives

Critics of the move have suggested that it could be linked to India’s economic slowdown, providing a diversion for the government. Some Kashmiris fear that the BJP aims to change the demographic character of the Muslim-majority region by allowing non-Kashmiris to purchase land there.

Political and Geopolitical Considerations

The move also aligns with Prime Minister Modi’s desire to project a tough stance on Kashmir and Pakistan. It signals that the BJP government is determined to assert its control over the region and maintain a firm posture in the face of external diplomatic challenges.

Effect of Removal of Article 370 of Constitution of India

Abolishing special status.

With the revocation of Article 370, Kashmir lost its separate Constitution and is now governed by the Indian Constitution, like other states in the country. This means all Indian laws automatically apply to Kashmiris, and people outside the state can buy property there.

The government has asserted that this change will bring development to the region. Home Minister Amit Shah stated in Parliament that Articles 370 and 35A (which provided special rights to the state’s residents) hindered democracy, fostered corruption, and impeded regional development.

Territorial Reorganization

In addition to revoking Article 370, the Government decided to reorganize the state into two smaller, federally administered territories . One combines the Muslim-majority Kashmir region with the Hindu-majority Jammu region, while the other is Ladakh, a Buddhist-majority area with cultural and historical ties to Tibet. This reorganization was a significant structural change in the region’s governance.

Legal Implications and Challenges on Removal of Article 370

Constitutional controversy.

The revocation of Article 370 raised constitutional questions. According to the Constitution, any modification of Article 370 required the agreement of the “state constituent assembly” .

However, Jammu and Kashmir had been under federal rule for over a year without any consultation of any sort with the state government, and the Indian government has only argued that it had the right to make the changes. The decision of the constituent assembly it was further argued was not binding on the president.

Political Hurdles to Legal Challenges

Opposition political parties can potentially launch legal challenges to the revocation. However, given the emotional and sensitive nature of the Kashmir issue in India, most parties might be reluctant to oppose the move for fear of being branded as anti-India. As a result, the onus of any challenge may fall on individuals or activists.

Legal Precedents pertaining to the Conflicting Status

Prem nath kaul v. jammu & kashmir (1959).

This case challenged the Big Landed Estates Abolition Act of 1950 because it was unconstitutionally enacted. The Supreme Court upheld the Act and ruled that Article 370 did not limit the plenary legislative powers of the Maharaja.

Sampat Prakash v. Jammu & Kashmir (1968)

In this case, the challenge was against the 1959 and 1964 Presidential Orders made under Article 370(1) that extended the operational period of Article 35(c), which made preventive detention legislation immune to fundamental rights claims. The Supreme Court upheld the Presidential Orders, emphasizing that Article 370 would only dissolve upon the recommendation of the Constituent Assembly.

Mohd. Maqbool Damnoo v. Jammu & Kashmir (1972)

This case challenged the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967, for violating Article 370(1). The Supreme Court upheld the amendment, taking into account the Jammu and Kashmir Governor’s concurrence and the changes in the state’s executive structure.

SBI v. Santosh Gupta (2016)

In this case, the Jammu & Kashmir High Court’s judgment was challenged, which ruled that specific provisions of a central law did not apply to Jammu & Kashmir. The Supreme Court overturned the decision, asserting Parliament’s legislative competence over the state and emphasizing the applicability of the Indian Constitution to Jammu and Kashmir.

Dr. Charu Wali Khanna v. UOI (pending)

This ongoing case challenges the validity of Article 35A, which provides for permanent residency laws in Jammu and Kashmir. The petitioners argue that it was introduced illegitimately and discriminates against women.

The Lingering Debate Around Article 35A

Historical context.

Article 35A has been a longstanding subject of legal controversy. This article was added to the Indian Constitution in 1954 through a Presidential Order that empowered the Jammu and Kashmir state legislature to define “permanent residents” and grant them special rights and privileges. These rights include exclusive property ownership and government job opportunities, among others.

Constitutional Challenge

The validity of Article 35A has been challenged on multiple fronts. Critics argue that it was introduced extra-constitutionally , bypassing the usual process of constitutional amendments. Furthermore, it has been criticized for gender discrimination as it empowers Article 6 of the Jammu and Kashmir Constitution, which disqualifies women who marry non-permanent residents from certain privileges.

The legal challenge to Article 35A remains an ongoing and contentious issue. Advocates for its retention argue that it is essential to protect the demographic and cultural character of the region. Conversely, opponents assert that it violates the principles of equality and inclusivity enshrined in the Indian Constitution.

Outlook for the Future

• While the security situation has improved, an estimated 300 militants , primarily local youth, are still active in Kashmir.
• The persistence of militancy is attributed to factors such as a shortage of arms and ammunition due to curbs imposed by the Pakistani army along the LoC.
• Experts believe that the deep-rooted issues and alienation in the region will take time to address, possibly spanning one or two generations before lasting results can be seen.

The revocation of Article 370 in Jammu and Kashmir marks a significant and contentious moment in India’s history. It has far-reaching legal, political, and social implications. While the situation in Kashmir has witnessed significant changes, with a crackdown on separatist leaders, political transformations, and improved security along the LoC, at the same time, continued challenges related to militancy and civilian targeting persist.

While the government argues that the move will bring development and integration, it has also ignited passionate debates about the region’s future and the rights of its residents. The legal challenges ahead will determine the ultimate constitutionality of this decision, while the complex history and geopolitical considerations continue to make Kashmir a flashpoint in the region.

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United States Institute of Peace

Home ▶ Publications

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

Wednesday, August 5, 2020

/ READ TIME: 2 minutes

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

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.

The views expressed in this publication are those of the author(s).

PUBLICATION TYPE: Special Report

• 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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Article 370 of Indian Constitution, History, Removal Date

Supreme Court Upholds Abrogation of Article 370. In a landmark decision, Supreme Court of India unanimously upheld the central government's August 2019 decision to abrogate Article 370.

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Supreme Court Verdict on Article 370: Latest Update

The Supreme Court of India, in a historic and unanimous decision on December 11, 2023, upheld the central government’s decision of August 5, 2019, removal of article 370 of the Indian Constitution. The Supreme Court’s verdict was delivered by a five-judge Constitution bench headed by Chief Justice D.Y. Chandrachud. The bench dismissed all petitions challenging the government’s action, finding that it was within the ambit of the Constitution and did not violate fundamental rights .

The verdict has sparked mixed reactions, with supporters of the government praising it as a landmark decision that will bring development and stability to Jammu and Kashmir, while critics have expressed concerns about the potential for increased violence and human rights abuses in the region.

Pakistan’s Reaction to the SC verdict on Article 370

In response to the Supreme Court of India’s verdict upholding the abrogation of Article 370, Pakistan on said it has “no legal value.” They maintained that international law does not recognize New Delhi’s “unilateral and illegal actions” taken on August 5, 2019.

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Background of Abrogation of Article 370

On August 5th and 6th, 2019, over two days, the Union government repealed Article 370, revoking Jammu and Kashmir’s special status. Article 370 of the Indian constitution gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent and part of the larger region of Kashmir which has been the subject of a Dispute between India and Pakistan since 1947. From 17 November 1952 to 31 October 2019, Jammu and Kashmir was governed by India as a state, and Article 370 granted it the authority to establish a separate constitution, a state flag, and internal administrative autonomy.

What is Article 370?

Article 370 of the Constitution of India was a temporary provision that provided special status to the State of Jammu and Kashmir. Article 370 was temporary in the sense that the Constituent Assembly of Jammu and Kashmir had the right to modify, delete or retain it, and it was considered to be temporary only till a plebiscite was held to ascertain the public opinion.

• The autonomy of the State has been 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 inserted in the Indian Constitution on October 17th 1949.

History Behind Article 370

• After Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir , signed the Instrument of Accession on October 26, 1947, the state became a part of the Dominion of India.
• Article 370 of the Indian Constitution states that J&K is covered only by Articles 1 and 370.
• The President, in consultation with the state government, was to decide on the application of Other Articles.
• The Constitution Order of 1950 outlined the themes on which the Union Parliament would have the authority to adopt legislation for Jammu & Kashmir by the Instrument of Accession; 38 topics from the Union List were included.
• The Instrument of Accession, which Maharaja Hari Singh, the former monarch of J&K, signed in 1947, gave rise to Article 370.
• Jammu and Kashmir were exempted from the Indian constitution by Article 370 of the Indian constitution, which was enacted on October 17, 1949, as a “temporary clause,” allowing the state to create its constitution and restricting the legislative authority of the Indian Parliament in the territory.
• In the draught constitution, it was proposed as Article 306A by Sir Narasimha Gopalaswami Ayyangar.
• The Jammu and Kashmir Constituent Assembly was dissolved after creating the state constitution, and on January 25, 1957, it did so without endorsing either the abrogation or revision of Article 370, leaving the clause’s status in doubt.

Read about: Governor General of India

Article 35A and Article 370 of Indian Constitution

Article 35A, which derives from Article 370, is distinctive in that it only appears in Appendix I and not in the main body of the Constitution. Until they were removed in August 2019, both of these articles granted the state of J&K and its residents exceptional status and rights.

Sheikh Abdullah was chosen as the article’s drafter by Jawahar Lal Nehru and Maharaja Hari Singh, the J&K state’s then-prime minister. The Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced by Union Home Minister Amit Shah and published in the Official Gazette of India on August 5, 2019. The ruling declared that the state of J&K must abide by all the articles of the Indian Constitution, which resulted in the suspension of J&K’s constitution. Additionally, the state’s Ranbir Penal Code, which was repealed by Presidential decree in 2019, was replaced by the Indian Penal Code (IPC), 1860, which also went into effect in the state.

The amendment was purchased by the government under Clause 3 of Article 370, not the conventional amending provision provided in Article 368 of the constitution. Hence, avoiding the amending process.

Read about: Finance Ministers of India List

Article 35 A

Permanent residents of Jammu and Kashmir were given exceptional privileges and rights under Article 35 A , including the ability to purchase property there, preference in hiring for positions in the public sector, and other benefits. According to this article, only citizens of Jammu and Kashmir who dwell there year-round are eligible to purchase real estate there and cast ballots in local elections. Article 35A was repealed by the Jammu and Kashmir Reorganization Act of 2019.

The Central Government will not require permission from the state’s government to implement laws once Article 370 has been successfully abrogated. After Article 370 of the Indian Constitution was repealed, Article 35 A lost all of its effects. Simply put, there won’t be any distinction between J&K’s permanent residents and the rest of the state’s citizens.

Read about: Education Ministers of India List

Removal of Article 370

In accordance with the authority afforded by Clause (1) of Article 370 of the Indian Constitution, the President of India issued the Constitution (Implementation to Jammu and Kashmir) Order, 2019 on August 5, 2019, repealing the special status previously accorded to Jammu and Kashmir.

Jammu and Kashmir no longer has its own constitution, flag, or anthem, and its population no longer has dual citizenship as a result of the repeal of Article 370. Jammu and Kashmir now abide by all legislative amendments made by the parliament, including the Right to Information Act and the Right to Education Act .

Now that Article 370 has been abolished, Jammu & Kashmir is fully covered by the Indian Constitution and all 890 Central legislation. Jammu and Kashmir was seen as being a part of India in both letter and spirit after Article 370 was repealed. The Indian Constitution’s Article 370 was viewed as a temporary and ineffective provision that needed to be repealed.

Advantages of Article 370

Better relationship with indians and kashmir population.

• Article 370’s elimination helps the people of Kashmir since it allows them to join the rest of India.
• Both they and Indians have the right to be a part of Kashmir.
• They are able to apply for scholarships for school.
• There is government employment available for them in Kashmir.

One Nation and One Flag

• India as a whole is now gathered.
• There is no distinct constitution for Indians and Kashmiris.
• Everyone will adhere to the motto “one nation, one constitution”.

Boost to Economic Development

• After Article 370 is repealed, Kashmiris can work in the Indians’ newly established firms and make good money.
• Creating more jobs will inevitably lower crime.
• The Kashmiris will also benefit economically if they sell their lands to the Indians on a leasing basis.

Private Investors can Invest

• Private business owners can establish factories in Kashmir, creating jobs for Kashmiris and Indians.
• The fact that 40% of Kashmiris lack jobs is the main cause of the rise in crime in the valley.
• Antisocial acts will decline as private investors begin to invest in Kashmir.
• Land prices will rise, enabling Kashmiris to make significant gains.

Right to Education and Information

• With the repeal of Article 370, all Kashmiris now have the right to an education. Kashmiris now have the right to know everything because the nation would be under one flag and one nation.
• The law now grants Kashmiris the right to receive a quality education from institutions located in the state.
• There is a 100% possibility that new educational institutions will open in the valley as a result of investors’ investments in Kashmir; this will educate children, particularly girls.

Disadvantages of Article 370

Only a small portion of kashmir believes it to be unlawful. this decision has been equated to fascism.

• According to Kashmiris, who categorically deny knowing that the Indian government intended to repeal Article 370.
• Separately, this was withdrawn without the J&K government’s consent and without warning.
• On August 5th, 2019, the internet was shut off, hundreds of troops were summoned, landlines were disconnected, and even Kashmiri lawmakers were placed under house arrest.
• The Kashmiris were abruptly forced to accept this decision after being locked inside their homes.
• This choice was made after the State Assembly of Jammu and Kashmir was disbanded and President’s rule was implemented in Kashmir.

Many proclaim it as unconstitutional; it was comparable to a dictatorship

• The people of Kashmir believe that their demands are being ignored.
• The imposition of Article 370 on Kashmir was unlawful, and thus amounts to deceiving the Kashmiris.
• The Indian leaders are not even paying attention to the democratically elected J&K lawmakers.
• 370 were eliminated from the constitution during a time when there was no state assembly.
• It is considered cheating because the public was informed that 10,000 troops had been sent to the Kashmir Valley because there was a possibility of a terrorist attack.

J&K no longer has the status of a state; instead, it is now considered to be union territory

• Jammu and Kashmir previously had a special status that was lowered as a result of Article 370.
• However, it has now descended to a status below normal and has been designated a Jammu and Kashmir union territory.
• Union territories have significantly lower levels of democracy than regular states, and as a result, the federal government will now have much more power over the territory.

Not all choices can be made by the elected state government

• The Kashmiris would be able to choose the state administration after article 370, but their rights will not be the same as they are now.
• In J&K, democracy will now suffer. The decision is not being fully accepted by the people of Kashmir, which will eventually lead to more political and social tensions.
• This choice won’t be implemented unless the Kashmiri population desires to assimilate with Indians.

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Article 370 of Indian Constitution FAQs

Jammu and Kashmir has a special position in terms of autonomy and the ability to create laws for the state's permanent residents, which is highlighted in Article 370 of the Indian Constitution.

What was the Article 370 removal date?

The Abrogation of Article 370 was on 5 August, 2019 by the Indian government.

Who proposed the concept for Article 370?

Sir Narasimha Gopalaswami Ayyangar proposed the concept for Article 370.

Why was 370 removed?

The Indian Supreme Court declared in April 2018 that since the state constituent assembly had ceased to exist, Article 370 had become permanent. Although Article 370 is still a part of the constitution, the Indian government declared it to be "inoperative" in order to get around this legal hurdle.

How did Govt remove Article 370?

As stated earlier, the entirety of article 370 can be repealed under article 370(3), but this requires a recommendation from the Constituent Assembly of Jammu and Kashmir. However, the Constituent Assembly was dissolved on January 25, 1957, without recommending the abrogation of the article.

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