Dr.

Ram Manohar Lohiya National Law

University, Lucknow

B.A. L.L.B. (Hons.), Semester I

(2018-2023)

BASICS OF LEGISLATION

FINAL DRAFT

Topic: A brief study of Article 370

Under the supervision of: Submitted By:

Dr. Shashank Shekhar Aayaksh Chadha

Assistant Professor Roll. No. – 1

 Enrolment number - 180101003

PREFACE
As a part of Basics of Legislation curriculum and in order to obtain knowledge in the field of law, I
have chosen the above mention topic as per my area of research. The main aim of my project is to
highlight the objective and problems of Article 370 also to trace its place in the Indian Constitution

During my research I also took reference and help from the bare acta of the Constitution of India. I
also took help from the internet sources which were of great help.

I would like to thank Dr. Shashank Shekhar for giving me this opportunity as well providing his able
guidance from time to time.
 Contents
1. Preface
2. Introduction
3. Background of formulation of Article 370
4. Conclusion
5. Bibliography
Introduction

Article 370 in The Constitution Of India 1949

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
(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 For the purposes 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 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 (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 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

Jammu & Kashmir has a special status among the princely states that joined India
after Independence as it negotiated its terms of succession. This special status
provides the state with greater autonomy and was put into force by article 370 of
the constitution. According to this article, except for defence, foreign affairs and
communications, the Parliament needs the state government concurrence for
applying all other laws.
Thus, the state’s residents live under a different of laws, including those relating to
citizenship, ownership of property and fundamental rights as compared to other
Indians. Under article 370 the centre has no power to declare emergency in case of
financial emergency, internal disturbance or imminent danger unless it is made with
the request or the concurrence of state government
This was a temporary provision and was supposed to be in place only till the
adoption of the state’s constitution. It draws its powers from clause 7 of the
instrument of accession signed by Maharaja Hari Singh and the state was within
those powers in drafting its own constitution to protect these rights.
Neither the state nor the government can amend the article except in accordance
with the terms of the article.
The special powers given by the article are
1. The state is exempt from the complete applicability of the Constitution of
India and it is allowed to have its own constitution.
 2. At the time of framing the powers of the government of India were
limited only to the subjects of defence, foreign affairs and
communications.
3. Other constitutional powers of the government of India could only be
extended to the state with the concurrence of the state government
4. The concurrence was only provisional and had to be ratified by the
constituent assembly of the state
5. The power of the state government to give concurrency only lasted until
the constituent assembly of Jammu & Kashmir was convened. Once the
scheme of powers was finalised the scheme of powers and dispersed, no
further extension was possible.
6. The amendment of article 370 could only take place 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. 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.

Presidential orders

A number of presidential orders were passed in accordance with clause (1) of

the article in concurrence with the state government

1. The presidential order of 1950 – called officially the “the Constitution

(application to Jammu & Kashmir) order 1950” came into force at the
same time as the Constitution of India on 26th January 1950. This
specified the subjects and articles of the Indian constitution which
were valid to Jammu & Kashmir as in accordance with the Instrument
of accession as required in clause (1) of article 370
 2. The presidential order of 1952 validated the abolition of monarchy in
the state
3. 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. Arguably, it went further than the Delhi Agreement in
some respects.
The provisions implementing the Delhi Agreement were:

1. Indian citizenship was extended to the 'permanent residents'

of Jammu and Kashmir (formerly called 'state subjects').
Simultaneously, the Article 35A was added to the
Constitution, empowering the state legislature to legislate on
the privileges of permanent residents with regard to
immovable property, settlement in the state and
employment.
2. The fundamental rights of the Indian constitution were
extended to the state. However, the State Legislature was
empowered to legislate on preventive detention for the
purpose of internal security. The State's land reform
legislation (which acquired land without compensation) was
also protected.
3. The jurisdiction of the Supreme Court of India was extended to
the State.
4. The Central Government was given power to declare national
emergency in the event of external aggression. However, its
power to do so for internal disturbances could be exercised
only with the concurrence of the State Government.
In addition, the following provisions which were not previously
decided in the Delhi Agreement were also implemented:

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.
2. Decisions affecting the disposition of the State could be made
by the Central Government, but only with the consent of the
State Government

More than 50 other presidential orders have been issued and have brought
some other provisions of the Constitution of India valid in Jammu & Kashmir

Autonomy of Jammu & Kashmir under article 370

The special status of Jammu & Kashmir entitles it to certain privileges such as
a separate provincial constitution and some exemptions from the provisions
of the Constitution of India. The state is the only one in India to have its own
separate constitution and flag.

Because the state has autonomy guaranteed to it under article 370 it has
exemptions from several major national laws such as the Indian Penal Code
(1860), instead it has its own penal code called the Ranbir Penal Code. The
absence of the IPC gives the state a lot of room to exercise its discretion in
sensitive matters relating to law and order.

Another major missing part of the state’s constitution is the absence of

reservation to scheduled tribes despite having a considerable presence of
tribals in Ladakh region. Reservation to women is absent as well.

The state employs a different kind of system of citizenship under which every
resident has a dual – citizenship, one of the states and one of India. The
citizens of the state are the citizens of India but the citizens from the rest of
the country are not citizens of the state. They do not have a right to property
or a right to vote in the state.

The state also doesn’t have equal rights for women in citizenship. If a woman
from the state marries a man not belonging to the state then her children
lose the rights in the state while the same doesn’t apply to the males of the
state.
Background of formulation of Article 370
“Article 370 was worked out in late 1947 between Sheikh Abdullah, who had by then
been appointed Prime Minister of J&K by the Maharaja and Nehru, who kept the
Kashmir portfolio with himself and kept Sardar Patel, the home minister, away from
his legitimate function. Hence Nehru is answerable to all acts of commission and
omission, consequences of which we are suffering till date as far as J&K is
concerned.”

“While it was Mountbatten who persuaded Nehru to take the J&K issue to the UN, it
was Sheikh Abdullah, who, driven by his ambition to be ruler of an independent
Kashmir and his hatred for the Maharaja, persuaded Nehru to give special status to
J&K. Among his reasons were – occupation of one third of J&K by Pakistan, reference
to the UN and plebiscite. The most sinister aspect of proposed Article 370 was the
provision that any changes could be brought about in it only by the concurrence of
J&K assembly. Nehru’s promise that Article 370 was a temporary provision and will
get eroded over a period of time has turned out to be a chimera. The first thing that
Sheikh Abdullah got done was to abolish hereditary monarchy and redesignate him
as Sadar-e-Riyasat who was to be elected by the Assembly. The accession of J&K
State into Indian Union was approved by J&K Assembly only in 1956. “
Conclusion
Article 370 is a peculiar article in the Indian Constitution, that peculiarity does not lie in the
objective it seeks, the powers it gives or the duties it casts but rather in its “temporary”
position in the constitution. This makes it the only article implemented for a limited time
period.

Even during its drafting in the constitution, it was opposed by its very framers but was
included due to insistence of then PM Jawahar Lal Nehru. BR Ambedkar even said “You wish
India should protect your borders, it should build roads in your area, it should supply you
food grains, and Kashmir should get equal status as India. But the Government of India
should have only limited powers and Indian people should have no rights in Kashmir. To give
consent to this proposal would be a treacherous thing against the interests of India and I, as
the Law Minister of India, will never do it.” This proceeded in its temporary position as it
was never envisaged that a territory of India will only be partly governed by its laws.

The constitution of India provides for equal rights for all its citizens. All the citizens have the
fundamental rights of freedom and equality, rights of minorities, and duties of individuals
and even the duties of citizens towards their country and fellow citizens regardless of their
race, ethnicity and gender.

Because of article 370, the state of Jammu and Kashmir has its own constitution, which
doesn’t provide all its citizens the fundamental rights, has no mention of a minority there is
also a lot of discrimination of gender in property rights where the women are denied equal
right to property and furthermore, she loses all claims to their property if they marry a non-
Kashmiri person.

There is also a baseless argument which says that if the Indian Government repeals article
370 then Kashmir will probably defect from the country but this is not the case as given in
article 1 of the Indian constitution, which defines the territory of our country and as also
pointed out in article 3 of the constitution of Jammu and Kashmir which states the
circumstances of Kashmir circumstances of Kashmir’s accession to India and iterates the fact
that there is no debate regarding its alliance to India.

“The Constituent Assembly of Jammu & Kashmir was dissolved after the framing of the
State’s Constitution. Post dissolution, an argument was made that now no modification or
extension of Centre’s powers was possible. This was totally rejected by the Supreme Court
in Sampat Prakash v. State of Jammu and Kashmir, wherein it upheld the Centre’s power to
make orders despite the fact that the State’s Constituent Assembly ceased to exist.”

The apex court laid down: “We must give the widest effect to the meaning of the word
‘modification’ used in Article 370(1).”

The apex court has laid down in State Bank of India vs Santosh Gupta case and settled the
controversy over article 370 saying that it had acquired a permanent space in the
constitution and it could no longer be abrogated. The supreme court has said the
Constituent Assembly of the state has ceased to exist the president would not be able to get
his mandatory provision of getting its recommendation for its abrogation.
 Bibliography

1. https://www.scconline.com/Members/NoteView2014.aspx?
citation=(1969)%202%20SCR%20365&&&&&40&&&&&SearchPage
2. https://www.scconline.com/Members/NoteView2014.aspx?
citation=(2017)%202%20SCC%20538&&&&&40&&&&&SearchPage
3. https://indiankanoon.org/doc/666119/
4. https://indiankanoon.org/doc/1573666/
5. https://timesofindia.indiatimes.com/india/article-370-has-acquired-permanent-
status-supreme-court/articleshow/63603527.cms
6. https://www.dailypioneer.com/2018/columnists/the-case-against-article-370.html
7. India Betrayed – The Role of Nehru -Brigadier BN Sharma
8. Lost Decades -Nani Palkhiwala
9. Atish-E-Chinar -Sheikh Abdullah
10. Partition Plan -Alan Campbell Johnson
11. Correspondence of Sardar Patel -Durga Das
12. Kashmir 1947 - Rival Versions of History -Prem Shankar Jha
13. My Frozen Turbulence in Kashmir -Jagmohan
14. My Reminiscences of Sardar Patel -V Shankar
15. Appendix A – Article 370