What is Article 370 of the Indian Constitution?, History

Last year on December 11, the Supreme Court ruled on the 2019 amendment to Article 370 of the Constitution by the Union government, which led to the revocation of the special status granted to the former state of Jammu and Kashmir. The court upheld the validity of the Constitutional order that resulted in the abrogation of Article 370.

This article will provide UPSC aspirants with insights into Article 370 and Article 35A, including key dates and controversies surrounding Article 370 and its revocation. Understanding the constitutional significance of Article 370 and the history of Jammu & Kashmir is crucial for the IAS exam.

SC Verdict on Abrogation of Article 370

After 16 days of hearings, a five-judge Constitution bench led by Chief Justice of India (CJI) DY Chandrachud, including Justices S K Kaul, Sanjeev Khanna, B R Gavai, and Surya Kant, reserved its verdict on 23 petitions related to the Union government’s 2019 move to amend Article 370. In the judgment delivered on December 11, CJI DY Chandrachud stated that Jammu and Kashmir did not possess internal sovereignty post its accession to India.

The court found no prima facie evidence that the President’s 2019 orders were mala fide or an extraneous exercise of power. While acknowledging the reorganization of the former state into Union Territories as a temporary measure, the court directed the Centre to work towards restoring statehood and conducting Legislative Assembly elections.

Article 370

Article 370 provided special autonomy to Jammu and Kashmir, permitting it to have its constitution, flag, and legislative powers, with some exceptions. Initially intended as a temporary measure for the state’s integration into India after its accession in 1947, it was revoked by the Indian government on August 5, 2019. This action removed the region’s special status and brought about substantial changes in governance. The revocation of Article 370 ignited debates regarding its legality, regional dynamics, and future consequences.

What is Article 370?

Article 370 provided special provisions for Jammu and Kashmir, allowing the state to selectively adopt laws passed by India’s Parliament. Instead of automatically applying all laws, the state’s lawmakers had the authority to choose which ones to enact by creating similar laws themselves.

This special status, outlined in a section of the Indian Constitution known as Part XXI, limited the jurisdiction of India’s Parliament in certain matters concerning Jammu and Kashmir. Initially intended as a temporary measure until the state formulated its constitution, Article 370 created a unique arrangement for governance between the central government and Jammu and Kashmir’s administration.

Article 370 of the Indian Constitution History

1947: Maharaja Hari Singh Signs the Instrument of Accession for Article 370

• In 1947, Maharaja Hari Singh, the last ruler of Jammu and Kashmir, signed the Instrument of Accession, aligning the region with the Dominion of India. The agreement allowed India jurisdiction over foreign affairs, defence, and communications while preserving certain autonomy.

1950: The Constitution of India Comes Into Force under Article 370

• The Indian Constitution took effect on January 26, 1950.
• Article 370 stipulated that India wouldn’t legislate for Jammu & Kashmir beyond the Instrument of Accession’s scope without its “concurrence.”
• Only Article 1 and Article 370 itself were applicable, with modifications possible in consultation with the State’s government.

1950: The President Issues First Constitutional Order Under Article 370

• President Rajendra Prasad issued the Constitution (Application to Jammu and Kashmir) Order in 1950.
• It defined Parliament’s powers in Jammu and Kashmir, listing subjects under its jurisdiction.
• This order introduced Schedule II, detailing modified Constitution provisions for the State.

1951: The Constituent Assembly of Jammu and Kashmir is Formed under Article 370

• The Jammu and Kashmir Constituent Assembly, led by Sheikh Abdullah’s National Conference Party, convened in 1951 to draft a constitution for the region.

1952: The Delhi Agreement is Formed for Article 370

• The Delhi Agreement between the Indian and Jammu and Kashmir governments vested residuary powers in the State.
• Selected provisions of the Indian Constitution, including fundamental rights and legislative powers, were extended to the region.

1954: President issues the Constitutional Order of 1954 of Article 370

• President Rajendra Prasad’s order, following the Delhi Agreement, guaranteed Jammu and Kashmir’s territorial integrity and introduced Article 35A, granting special rights to permanent residents.

1956: Constitution of Jammu and Kashmir Comes Into Force under Article 370

• After a five-year process, the Jammu and Kashmir Constitution was adopted in 1956, affirming the State’s integration with India.
• The Constituent Assembly disbanded, making no recommendation to dilute Article 370.

1968: SC Holds that Article 370 is a Permanent Feature under Article 370

• In Sampat Prakash v State of Jammu & Kashmir, the Supreme Court ruled that Article 370’s existence was permanent, despite the Constituent Assembly’s dissolution.

2016: SC Holds: Article 370 will Cease to Operate Only After the Recommendation of the Constituent Assembly

• State Bank of India v Santosh Gupta reaffirmed that Article 370 would continue until the Constituent Assembly recommended its cessation.

2019: Abrogation of Article 370

• The Indian Parliament passed the Reorganization Act, leading to the abrogation of Article 370 on August 6, 2019.
• President Ramnath Kovind’s Order removed its provisions, except clause 1.

2019: Article 370-Jammu and Kashmir is Bifurcated into Two Union Territories

• The Jammu and Kashmir Reorganisation Act, 2019, divided the State into two Union territories—Jammu and Kashmir, and Ladakh—on August 9.

2023: Article 370 is Listed Before a New 5-judge Bench

• On July 3, 2023, the Supreme Court assigned the Article 370 challenge to a Constitution Bench led by Chief Justice D.Y. Chandrachud, set to commence hearings on August 2.

2023: Article 370-Constitution Bench to Start Hearing the Challenge from August 2nd

• The challenge regarding Article 370 will be heard by the Supreme Court starting August 2, 2023, involving 22 petitions challenging the abrogation

Article 370 Provisions and Implications

Candidates can check the table provided below for Article Provision and Implications

Jammu and Kashmir Reorganisation Act, 2019

It outlines the transformation of Jammu and Kashmir into two Union Territories—Jammu and Kashmir with a legislature and Ladakh without one.

Division of Territories – Article 370 

• The act divides Jammu and Kashmir into:
• The Union Territory of Jammu and Kashmir with a legislature.
• The Union Territory of Ladakh without a legislature.
• Ladakh encompasses the Kargil and Leh districts, while the Union Territory of Jammu and Kashmir includes the remaining areas.

Administrative Structure – Article 370

• The Union Territory of Jammu and Kashmir will be governed by the President through a Lieutenant Governor (LG). The Union Territory of Ladakh’s administration will also be under the President, with a separate LG.

Legislative Assembly of Jammu and Kashmir – Article 370

• A Legislative Assembly is established for the Union Territory of Jammu and Kashmir, comprising 107 seats. Twenty-four seats remain vacant due to Pakistani-occupied areas.
• Reserved seats will exist for Scheduled Castes and Scheduled Tribes. The Lieutenant Governor can nominate two members to represent women’s interests.

Legislative Powers and Governance – Article 370

• The Assembly’s term is five years, with mandatory sessions at least every six months. It can legislate on State List matters except “Police” and “Public Order,” as well as on Concurrent List subjects. Parliament also has jurisdiction over the Union Territory.

Council of Ministers – Article 370

• The Union Territory of Jammu and Kashmir will possess a Council of Ministers, comprising a maximum of ten percent of Assembly members. This Council will assist the LG and communicate decisions to them.

High Court and Advocate General – Article 370

• The High Court of Jammu and Kashmir becomes the common High Court for both Union Territories. An Advocate General will offer legal advice to the Union Territory’s government.

Abolition of Legislative Council – Article 370

• The Legislative Council of Jammu and Kashmir will be dissolved, causing pending bills to lapse.

Appointment of Advisory Committees – Article 370 

• Advisory Committees will be appointed by the central government for specific purposes, including asset distribution, electricity, and water matters. The Lieutenant Governor must act on their recommendations within 30 days.

The extent of Laws and Amendments – Article 370

• A Schedule lists 106 central laws applicable to the Union Territories, including the Aadhaar Act and the Right to Education Act. It repeals 153 state laws, retains 166, and amends seven. Amendments remove restrictions on land leasing to non-permanent residents.

Removal of Article 370

1. Removal of Article 370 – Integration with the Rest of India: Article 370 granted special autonomy to Jammu and Kashmir, creating a distinct legal and constitutional framework for the state. This autonomy was seen by some as an obstacle to fully integrating the region with the rest of India.
2. Removal of Article 370 – Unity and Equality: The move was intended to promote a sense of unity and equality among all Indian states and territories. The special status granted by Article 370 was considered by some as an anomaly that went against the principle of equal treatment of all states.
3. Removal of Article 370 – National Security: The separate provisions under Article 370 were seen as impeding the application of central laws and policies in the state, including matters related to national security. The central government believed that a unified legal framework would enhance its ability to address security concerns.
4. Removal of Article 370 – Economic Development: Article 370 limited the extension of central economic policies and initiatives to Jammu and Kashmir. The decision to repeal the article aimed to facilitate the implementation of economic development programs and attract investment to the region.
5. Removal of Article 370 – Gender Equality and Social Justice: Some provisions under Article 370 were criticized for discriminating against women in the state. By allowing women to lose their permanent resident status if they married non-residents, these provisions were seen as infringing upon gender equality and social justice principles.
6. Removal of Article 370 – Political and Administrative Efficiency: The presence of dual administrative systems due to Article 370 was viewed as cumbersome and inefficient. Repealing the article was expected to streamline governance and administrative processes.
7. Removal of Article 370 – Infrastructure and Connectivity: The special status had implications for infrastructure development and connectivity projects in the region. By extending uniform jurisdiction, the central government aimed to expedite infrastructural growth and connectivity improvement initiatives.
8. Removal of Article 370 – Promotion of Investment and Tourism: The special status had deterred many businesses and investors from considering Jammu and Kashmir due to the region’s distinct legal framework. By eliminating these barriers, the central government aimed to encourage investment and promote tourism.
9. Removal of Article 370 – Overcoming Political Deadlock: Over time, Article 370 had also been associated with political tensions and deadlock within the region. By repealing the article, the central government aimed to create an environment for smoother political discourse and decision-making.

Removal of Articles 370 and 35(A)-Abrogation

Jammu and Kashmir, with its special status, has seen a significant number of residents still grappling for their citizenship rights and privileges. These individuals find themselves in a situation where they are striving to attain the same privileged rights and benefits accorded to permanent residents of the state.

• A notable case exemplifying this predicament involves refugees from West Pakistan who migrated to the state during the partition of India in 1947. Despite residing in the state for over four decades, these refugees were deprived of fundamental rights available to other citizens of the country.
• These rights encompassed essential aspects such as the right to employment, the ability to acquire immovable property, the freedom to purchase vehicles, and access to higher technical education.
• In response to these inequities, the Jammu and Kashmir legislature enacted the Resettlement Act of 1982. This legislation aimed to rectify the disparity by extending the same rights to individuals from Jammu and Kashmir who had voluntarily migrated during the partition era, as well as to their descendants who chose to return to the state.
• The petitioner, in this case, sought to ensure that these individuals are granted rights analogous to those enjoyed by permanent residents of the state.
• The denials of these rights were largely attributed to the stipulations associated with the definition of a ‘Permanent Resident’ as outlined in Section 6 of the governing regulations.
• This situation brings to light the complexities and challenges stemming from the differentiation in legal status among various groups of residents within the framework of Jammu and Kashmir’s unique governance arrangement.

What is Section 35(a) under Article 370?

• Article 35A: Added to the Indian Constitution in 1954.
• Initiated by: Enacted by then-President Rajendra Prasad, based on the advice of Jawaharlal Nehru Cabinet.
• Special Rights and Privileges: Grants special rights and privileges to citizens of Jammu & Kashmir.
• Definition of ‘Permanent Residents’: Empowers J&K legislature with discretionary authority to determine who qualifies as a ‘permanent resident’ of the state.
• Employment and Property: Offers special advantages in state government employment, property acquisition, settlement, scholarships, and state-provided aid.
• Exclusive Authority: Enables the state legislature to impose restrictions on non-permanent residents in specified areas.

Legal issues of Article 35A

Article 35A has been the subject of legal discussions due to these points, with debates surrounding its origins, parliamentary procedures, and potential conflicts with constitutional provisions. The following list of Article 35A’s legal issues is highlighted:

Current Status of Article 35A

On August 5, 2019, the Central Government revoked the special status accorded to Jammu and Kashmir under Article 370 by issuing a Presidential Order. Consequently, the entire Constitution of India was extended to the state. This move effectively led to the abolition of Article 35A. Additionally, the Indian Parliament enacted laws to restructure the state into two separate union territories: Jammu and Kashmir, and Ladakh.

Removal of Article 370 Advantages and Disadvantages

In this table, you will learn about Article 370 Advantages and Disadvantages. Read the following information to boost your knowledge.

Removal of Article 370 UPSC Notes

The Revocation of Article 370 in August 2019 marked a significant constitutional change in India. Article 370 granted special autonomy to the region of Jammu and Kashmir, allowing it to have its constitution and laws. The Indian government’s decision to remove this provision resulted in the reorganization of the state into two separate union territories: Jammu and Kashmir, and Ladakh.

This action received both support and criticism. Supporters argued it would facilitate better integration of the region with the rest of India, promote development, and enhance national security. However, critics expressed concerns about potential cultural identity erosion and how the decision was implemented. The revocation of Article 370 remains a topic of discussion nationally and internationally.

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