Article 370 of The Indian Constitution Gave Special Status To
Article 370 of The Indian Constitution Gave Special Status To
Article 370 of The Indian Constitution Gave Special Status To
located in the northern part of Indian subcontinent which was administered by India as a state
from 1954 to 31 October 2019, and a part of the larger region of Kashmir, which has been the
subject of dispute between India, Pakistan, and China since 1947[1][2]—conferring it with the
power to have a separate constitution, a state flag and autonomy over the internal
administration of the state.[3][4]
The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special
Provisions.[5] The Constituent Assembly of Jammu and Kashmir, after its establishment, was
empowered to recommend the articles of the Indian constitution that should be applied to the
state or to abrogate the Article 370 altogether. After consultation with the state's Constituent
Assembly, the 1954 Presidential Order was issued, specifying the articles of the Indian
constitution that applied to the state. Since the Constituent Assembly dissolved itself without
recommending the abrogation of Article 370, the article was deemed to have become a
permanent feature of the Indian Constitution.[6][7]
This article, along with Article 35A, defined that the Jammu and Kashmir state's residents
live under a separate set of laws, including those related to citizenship, ownership of
property, and fundamental rights, as compared to residents of other Indian states.[8] As a result
of this provision, Indian citizens from other states could not purchase land or property in
Jammu & Kashmir.[9]
On 5 August 2019, the Government of India issued a constitutional order superseding the
1954 order, and making all the provisions of the Indian constitution applicable to Jammu and
Kashmir based on the resolution passed in both houses of India's parliament with 2/3
majority.[10][11][12][13] Following the resolutions passed in both houses of the parliament, he
issued a further order on 6 August declaring all the clauses of Article 370 except clause 1 to
be inoperative.[14]
In addition, the Jammu and Kashmir Reorganisation Act was passed by the parliament,
enacting the division the state of Jammu and Kashmir into two union territories to be called
Union Territory of Jammu and Kashmir and Union Territory of Ladakh.[15][16][17] The
reorganisation took place on 31 October 2019.
Purpose
The state of Jammu and Kashmir's original accession, like all other princely states, was on
three matters: defence, foreign affairs and communications. All the princely states were
invited to send representatives to India's Constituent Assembly, which was formulating a
constitution for the whole of India. They were also encouraged to set up constituent
assemblies for their own states. Most states were unable to set up assemblies in time, but a
few states did, in particular Saurashtra Union, Travancore-Cochin and Mysore. Even though
the States Department developed a model constitution for the states, on 19 May 1949, the
rulers and chief ministers of all the states met in the presence of States Department and
agreed that separate constitutions for the states were not necessary. They accepted the
Constitution of India as their own constitution. The states that did elect constituent assemblies
suggested a few amendments which were accepted. The position of all the states (or unions of
states) thus became equivalent to that of regular Indian provinces. In particular, this meant
that the subjects available for legislation by the central and state governments was uniform
across India.[18]
In the case of Jammu and Kashmir, the representatives to the Constituent
Assembly[19] requested that only those provisions of the Indian Constitution that corresponded
to the original Instrument of Accession should be applied to the State and that the state's
constituent assembly, when formed, would decide on the other matters. Government of India
agreed to the demands shortly before the above meeting with the other states.[note
1]
Accordingly, the Article 370 was incorporated into the Indian Constitution, which
stipulated that the other articles of the Constitution that gave powers to the Central
Government would be applied to Jammu and Kashmir only with the concurrence of the
State's constituent assembly. This was a "temporary provision" in that its applicability was
intended to last till the formulation and adoption of the State's constitution.[21] However, the
State's constituent assembly dissolved itself on 25 January 1957 without recommending
either abrogation or amendment of the Article 370. Thus, the Article was considered to have
become a permanent feature of the Indian constitution, as confirmed by various rulings of
the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which
was in April 2018.[22][23][24][7]
Original text
370. Temporary provisions with respect to the State of Jammu and Kashmir[25]
(1) Notwithstanding anything contained in this Constitution,—
(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and
Kashmir;[note 2]
(b) the power of Parliament to make laws for the said state shall be limited to—
(i) 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
(ii) such other matters in the said Lists as, with the concurrence of the Government of the
State, the President may by order specify.
Explanation [1950 wording]: For the purpose of this article, the Government of the State
means the person for the time being recognised 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 Maharaja's Proclamation dated the fifth day of March, 1948;
Explanation [1952 wording]: For the purpose of this article, the Government of the State
means the person for the time being recognized by the President on the recommendation of
the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and
Kashmir, acting on the advice of the Council of Ministers of the State for the time being in
office.[note 3]
(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 (i) 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 (ii) of sub-
clause (b) of clause (1) or in the second provision 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.[27]
Analysis
The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the
State could not be compelled to accept any future Constitution of India. The State was within
its rights to draft its own Constitution and to decide for itself what additional powers to
extend to the Central Government. Article 370 was designed to protect those rights.
[28]
According to the constitutional scholar A. G. Noorani, Article 370 records a 'solemn
compact'. Neither India nor the State can unilaterally amend or abrogate the Article except in
accordance with the terms of the Article.[29]
Article 370 embodied six special provisions for Jammu and Kashmir:[30][31]
1. It exempted the State from the complete applicability of the Constitution of India. The
State was conferred with the power to have its own Constitution.
2. Central legislative powers over the State were limited, at the time of framing, to the
three subjects of defence, foreign affairs and communications.
3. Other constitutional powers of the Central Government could be extended to the State
only with the concurrence of the State Government.
4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent
Assembly.
5. The State Government's authority to give 'concurrence' lasted only until the State
Constituent Assembly was convened. Once the State Constituent Assembly finalised the
scheme of powers and dispersed, no further extension of powers was possible.
6. Article 370 could be abrogated or amended only upon the recommendation of the
State's Constituent Assembly.
Once the State's Constitutional Assembly convened on 31 October 1951, the State
Government's power to give `concurrence' lapsed. After the Constituent Assembly dispersed
on 17 November 1956, adopting a Constitution for the State, the only authority provided to
extend more powers to the Central Government or to accept Central institutions vanished. [32]
[33][31]
Noorani states that this understanding of the constitutionality of the Centre-State relations
informed the decisions of India till 1957, but that it was abandoned afterwards. In subsequent
years, other provisions continued to be extended to the State with the 'concurrence' of the
State Government.[32][33][31]
Presidential orders
When Article 370 was originally created, only two articles of the Indian Constitution applied
in full to Jammu and Kashmir. Other provisions of the Constitution would apply with
exceptions and modifications specified by the President in his Order in consultation with or
the concurrence of the government of the state.[34] In exercise of these powers, as conferred by
clause (3) of article 370 of the Constitution, the President made a series of orders with the
concurrence of the Government of the State of Jammu and Kashmir.
Presidential order of 1950
The Presidential order of 1950, officially The Constitution (Application to Jammu and
Kashmir) Order, 1950, came into force on 26 January 1950 contemporaneously with
the Constitution of India. It specified the subjects and articles of the Indian Constitution that
corresponded to the Instrument of Accession as required by the clause b(i) of the Article 370.
[35][36]
Thirty eight subjects from the Union List were mentioned as matters on which the Union
legislature could make laws for the State. Certain articles in ten of the twenty-two parts of the
Indian Constitution were extended to Jammu and Kashmir, with modifications and exceptions
as agreed by the state government.[35]
In this first Presidential Order under Article 370 "235 articles of the Indian Constitution were
inapplicable to the state of Jammu & Kashmir, 9 were partially applicable, and 29 were
applicable in a modified form".[36]
This order was superseded by the Presidential order of 1954.
Presidential order of 1952
The Presidential order of 1952 was published on 15 November 1952, at the request of the
state government. It amended the Article 370, replacing the phrase "recognised by the
President as the Maharaja of Jammu and Kashmir" by "recognized by the President on the
recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". The
amendment represented the abolition of the monarchy of Jammu and Kashmir.[37][38]
Background: The Constituent Assembly of Jammu and Kashmir was elected in 1951 and
convened on 31 October 1951. The Basic Principles committee of the Constituent Assembly
recommended the abolition of the monarchy, which was unanimously approved by the
Assembly on 12 June 1952. In the same month, the Hindu-dominated Jammu Praja
Parishad submitted a memorandum to the President of India demanding the full application of
the Indian Constitution to the State. The Government of India summoned a delegation from
Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the
State. After discussions, the 1952 Delhi Agreement was reached.[39]
The State's prime minister Sheikh Abdullah was slow to implement the provisions of the
Delhi Agreement. However, in August 1952, the State Constituent Assembly adopted a
resolution abolishing the monarchy and replacing the position by an elected Head of State
(called Sadar-i-Riyasat). Despite reservations on this piecemeal approach to adopting
provisions, the Central Government acquiesced, leading to the Presidential Order of 1952.
The Legislative Assembly elected Karan Singh, who was already acting as the Prince Regent,
as the new Sadar-i-Riyasat.[38][40]
Presidential order of 1954.
The Presidential order of 1954, officially The Constitution (Application to Jammu and
Kashmir) Order, 1954 came into force on 14 May 1954. Issued with the agreement of the
State's Constituent Assembly, it was a comprehensive order seeking to implement the 1952
Delhi Agreement.[41][42] Arguably, it went further than the Delhi Agreement in some respects.
[43]
1. Financial relations between the Centre and the State were placed on the same footing
as the other States. The State's custom duties were abolished.[46]
2. Decisions affecting the disposition of the State could be made by the Central
Government, but only with the consent of the State Government.[46][48]
Background: The State Government's decision to abolish the monarchy led to increased
agitation by the Jammu Praja Parishad, which found support among the Ladakhi Buddhists
and the Hindu parties of India.[49][50][51][52] In response, Sheikh Abdullah started questioning the
value of Kashmir's accession to India, leading to a loss of support among his Cabinet
members. On 8 August 1953, Sheikh Abdullah was dismissed from the post of prime minister
by the Sadar-i-Riyasat Karan Singh and his erstwhile deputy Bakshi Ghulam
Mohammad was appointed in his place. Abdullah and several of his colleagues were arrested
and put in prison.[53][54]
The purged Constituent Assembly, with 60 of the original 75 members, unanimously adopted
on 6 February 1954, the recommendations of its Basic Principles Committee and the
Advisory Committee on Fundamental Rights and Citizenship.[55] According to the Basic
Principles Committee:
While preserving the internal autonomy of the State, all the obligations which flow from the
fact of accession and also its elaboration as contained in the Delhi Agreement should find an
appropriate place in the Constitution. The Committee is of the opinion that it is high time that
finality in this respect should be reached and the relationship of the State with the Union
should be expressed in clear and precise terms.[54]
The Presidential order of 1954 was issued based on these recommendations.[55]
Further presidential orders (1955–2018)
In addition to these original orders, forty-seven Presidential orders were issued between 11
February 1956 and 19 February 1994, making various other provisions of the Constitution of
India applicable to Jammu and Kashmir. All these orders were issued with the 'concurrence
of the Government of the State' without any Constituent Assembly.[56][57][note 4] Some of these
Presidential orders were issued when the state was under President's rule and had "no
Kashmir government at all", states Jill Cottrell. [58][note 5] The concurrence in this instance was
given by the Governor of the state, a nominee of the Union government. [58] Such an
interpretation[which?] was upheld by the Supreme Court of India in 1972.[61][note 6]
The effect of the Presidential orders issued since 1954 had been to extend 94 of the 97
subjects in the Union List (the powers of the Central Government) to the State of Jammu and
Kashmir, and 260 of the 395 Articles of the Constitution of India. [62] All of these orders had
been issued as amendments to the Presidential Order of 1954, rather than as replacements to
it, presumably because their constitutionality was in doubt, according to Cottrell.[59]
This process has been termed the 'erosion' of the Article 370.[59][60] Home minister Gulzarilal
Nanda (1963–1966) opined that the terms for the "special status" granted to Jammu and
Kashmir in this Article included a "very simple" process to amend, by an Executive Order of
the President of India, whereas the powers of all other states could only be amended by the
"normal process of (constitutional) amendment [...] subject to stringent conditions".
According to him, Article 370 was "the only way" of taking the Constitution of India into
Jammu and Kashmir, it is a tunnel through which "a good deal of traffic has already passed
and more will". The successors of Nanda in the Home Ministry have interpreted the Article in
the same manner.[63]
FRATERNITY assuring the dignity of the individual and the unity of the nation;
Human rights
Article 370 acknowledges the special status of the state of Jammu and Kashmir in terms of
autonomy and its ability to formulate laws for the state's permanent residents.[note 7] In the
1954 Presidential order, among other things, the Fundamental Rights in the Indian
Constitution were made applicable to Kashmir with exceptions.[70] Later amendments, states
Cottrell, modified the applicability of basic human rights in the Indian Constitution to
permanent residents of Jammu and Kashmir.[clarification needed] The state legislature further
modified these, as well as added "preventive detention laws" that it exempted from human
rights challenges for twenty-five years.[70] Further, the state gave special privileges to the
permanent residents in matters such as residence, property, education and government jobs,
which were unavailable to others.[71][72] Article 35A of the Indian constitution has been
interpreted by some Kashmiri officials to disallow challenging any state law, merely on the
ground of infringing upon rights, granted to all citizens of India via the national constitution.
[72]
According to Sehla Ashai, per its provisions, "the women who married non-state subjects
[men from other states of India or abroad] could no longer claim state subject status, would
thereby lose both preferential treatment in government hiring and the ability to acquire new
property in the state". The opponents to this bill argued that this is a "violation of Kashmiri
women's fundamental rights under the Indian Constitution" and that the bill discriminated
human beings by their gender.[78] The supporters argued that if this bill failed to pass it
"would be the end of constitutionally guaranteed autonomy for Jammu and Kashmir" and that
the law was created to "protect the ethnic identity of the people of Jammu and Kashmir".
[78]
The bill was supported by the state-based Jammu & Kashmir National Conference Party
and Jammu and Kashmir Peoples Democratic Party, but challenged by the Indian National
Congress party. It was reintroduced in J&K legislative houses in August 2004 as an
amendment to the state constitution, but it failed to pass the Upper House of the state by the
required two-thirds majority.[79]
In 2010, the Permanent Residents (Disqualification) legislation was reintroduced in the state's
legislative houses, with support from the two main state-based parties. [80] It again attracted
criticism that "such bills have no sanction in the legal and constitutional history of the state or
in Article 370".[74]
Other issues
Amarnath land transfer controversy
Main article: Amarnath land transfer controversy
On 26 May 2008, the Government of India and the state government of Jammu and
Kashmir reached an agreement to transfer 100 acres (0.40 km2) of forest land to the Shri
Amarnathji Shrine Board (SASB) to set up temporary shelters and facilities for Hindu
pilgrims.[81] Kashmiri separatists opposed the move citing reasons that it will jeopardize the
article 370 that gives separate identity to the people of Jammu and Kashmir and prevents any
Indian citizen to settle in Kashmir. People in Kashmir staged widespread protests against this
decision by government of India.[82] Due to the protests, the J&K State government relented
and reversed the decision to transfer land. As a result, Hindus in the Jammu region launched
counter-agitations against this roll back.[83]
2019 actions
Presidential order of 2019
Main article: Indian revocation of Jammu and Kashmir's special status
On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha (upper house of
the Indian Parliament) that the President of India had issued The Constitution (Application
to Jammu and Kashmir) Order, 2019 (C.O. 272) under Article 370, superseding the
Constitution (Application to Jammu and Kashmir) Order, 1954. The order stated that all the
provisions of the Indian Constitution applied to Jammu and Kashmir. Whereas the 1954 order
specified that only some articles of the Indian constitution to apply to the state, the new order
removed all such restrictions. This in effect meant that the separate Constitution of Jammu
and Kashmir stood abrogated. The President issued the order with the "concurrence of the
Government of State of Jammu and Kashmir", which apparently meant the Governor
appointed by the Union government.[11][92]
The Presidential Order 2019 also added clause (4) with four sub-clauses to Article 367 under
"interpretations". The phrase "Sadar-i-Riyasat acting on the aid and advice of the Council of
Ministers" shall be construed as the "Governor of Jammu and Kashmir". The phrase "State
government" shall include the Governor. In proviso to clause (3) of article 370 of the
Constitution, the expression "Constituent Assembly of the State referred to in clause (2)"
shall read "Legislative Assembly of the State".[11][note 9] According to Jill Cottrell, some of the
Presidential orders under Article 370 have been issued since 1954 in similar circumstances
when the state was under President's rule. The Union governments interpreted the
"concurrence of the state government" under these circumstances to mean the Governor.[58][note
6]
Immediately after placing the Presidential Order 2019 before the Rajya Sabha, Home
Minister Amit Shah moved a resolution recommending that the president issue an order under
article 370(3) rendering all clauses of Article 370 inoperative. [93][11] After the resolution was
adopted by both houses of the parliament, the president issued Constitutional Order 273 on 6
August 2019 replacing the extant text of Article 370 with the following text:[14][94]
370. All provisions of this Constitution, as amended from time to time, without any
modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding
anything contrary contained in article 152 or article 308 or any other article of this
Constitution or any other provision of the Constitution of Jammu and Kashmir or any law,
document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or
usage having the force of law in the territory of India, or any other instrument, treaty or
agreement as envisaged under article 363 or otherwise.
Change of status of Jammu and Kashmir
Main article: Jammu and Kashmir Reorganisation Act, 2019
On 5 August 2019, the Home Minister Amit Shah introduced the Jammu and Kashmir
Reorganisation Bill, 2019 in the Rajya Sabha to convert Jammu and Kashmir's status of a
state to two separate union territories, namely Union Territory of Jammu and Kashmir and
Union Territory of Ladakh. The union territory of Jammu and Kashmir was proposed to have
a legislature under the bill whereas the union territory of Ladakh is proposed to not have one.
[11][95]
By the end of the day, the bill was passed by Rajya Sabha with 125 votes in its favour
and 61 against (67%).[96] The next day, the bill was passed by the Lok Sabha with 370 votes
in its favour and 70 against it (84%).[97] The bill became an Act after it was signed by the
president.
The two union territories came into existence on 31 October 2019, which was celebrated as
National Unity Day.[98] The president of India appointed a Lt. Governor for the Union
Territory of Jammu and Kashmir and a Lt. Governor for the Union Territory of Ladakh.
[99]
Both the Lt. Governors were sworn in by Justice Gita Mittal, the Chief Justice of Jammu
& Kashmir High Court, on 31 October 2019 - first at Leh for Ladakh UT and then at Srinagar
for J&K UT.[100] President's Rule under article 356 of the Constitution of India was ended in
the state of Jammu & Kashmir on the night of 30 October 2019. President's Rule is not
applicable to and is not needed in a union territory as the union territory anyway is controlled
by the central government. The President issued an order stating that he will rule the union
territory of Jammu & Kashmir directly until the legislative assembly is constituted in the
union territory.[101]