CONSTITUTIONAL ROOTS OF ARTICLE 370

Submitted by: ISHITA

Batch 2022-27, BA LLB. Division E

PRN:22010223088

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In

March 2024

Under the Guidance of

Ms. Sakshi Parashar

(Course in Charge, Constitutional Law)

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CERTIFICATE

The project named ' Constitutional roots of article 370’ submitted to Symbiosis Law School,
NOIDA as part of Internal Continuous Evaluation for Constitutional Law is based on my
original work and was completed under the supervision of Ms. Sakshi Parashar. The material
taken from other sources and included into the project has been duly credited.

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ACKNOWLEDGMENT

I'd like to express my heartfelt gratitude to Ms. Sakshi Parashar for guiding me throughout
the project, assisting me in thoroughly understanding the basis of my topic, and answering
my questions whenever they arose.

I would also like to appreciate the library department and academic support of Symbiosis
Law School, NOIDA for supplying me with various electronic research resources and
materials to assist in making my project as original as possible.

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INDEX

S. No. Particulars Pg. No.

1. Introduction 5
2. Research Objective 5
3. Research Questions 6
4. Analysis 6-13
5. Conclusion 13-14
6. Bibliography 15

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INTRODUCTION

The Indian Constitution, enacted in 1950, is the foundational legal document of India. Among
its provisions, Article 370 granted temporary special status to the state of Jammu and
Kashmir, allowing it certain autonomy and exemptions from national laws. Article 370 1
stands as a significant testament to the intricate balance between federalism and autonomy
within the framework of the Indian Union. Enshrined within the Constitution of India, Article
3702 delineated a unique set of provisions granting special autonomous status to the erstwhile
state of Jammu and Kashmir, embodying the complex interplay of historical, political, and
constitutional imperatives.

Established against the backdrop of the Instrument of Accession signed by the Maharaja of
Jammu and Kashmir in 1947, Article 370 was intended as a temporary provision, serving as a
bridge between the region's accession to India and the eventual resolution of its political
status. This provision facilitated the application of Indian laws to Jammu and Kashmir with
certain modifications, thereby safeguarding the state's distinct identity and preserving its
autonomy in key areas such as governance, citizenship, and property rights. However, the
implications of Article 370 transcended legal doctrine, resonating deeply in the socio-political
fabric of the region and eliciting divergent interpretations and reactions both within and
beyond the Indian polity. The revocation of Article 370 in August 2019, through the
abrogation of its special status by the Indian Parliament, marked a seismic shift in the
constitutional landscape, eliciting fervent debates and sparking varied responses across the
political spectrum.

RESEARCH OBJECTIVE

The research objective of this research paper is to comprehensively analyse the historical
context, legal implications, socio-political ramifications, and public perception surrounding
the abrogation of Article 370 of the Indian Constitution, with a focus on understanding its
impact on the state of Jammu and Kashmir and its implications for Indian federalism and
minority rights.

1
INDIA CONST. art.370.
2
Supra Note 1.

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RESEARCH QUESTIONS

1. What historical, political, and constitutional influences prompted the integration of

Article 370 into the Indian Constitution, and how has its presence influenced the
dynamic between the Indian government and Jammu and Kashmir?
2. How was Article 370 nullified or repealed from the Indian Constitution?

ANALYSIS

HISTORY:

In ancient texts, Kashmir was referred to as "kashyapmar," deriving its legendary origins
from the sage Kashyap. Under the reign of Ranjit Singh, the state of Jammu and Kashmir
took on its modern form. A local leader from the Dogra community assumed control,
expanding the territory by capturing Ladakh and Baltistan from the Sikh empire. Amid the
growing influence of the British East India Company, Ranjit Singh was compelled to sign the
Treaty of Amritsar in 1809, formalized in 1846 after the first Anglo-Sikh war.

The Dogra king governed over Jammu, the Kashmir Valley, Gilgit-Baltistan, and Ladakh,
having acquired dominion through a sale to Gulab Singh, the Dogra king. This arrangement
persisted until 1947, when violent episodes ensued due to the British partitioning of the
Indian subcontinent into India and Pakistan. Maharaja Hari Singh signed a Standstill Treaty
with Pakistan, which was breached when Pakistan initiated an unofficial war in October 1947
to end Hindu rule in the region.

Feeling unable to protect the state, Hari Singh sought assistance from the Indian government,
which agreed to provide aid on the condition that Jammu and Kashmir accede to India.
Maharaja Hari Singh accepted this condition, and the Indian government intervened after he
signed the Instrument of Accession on October 26, 1947. The law granted special rights to
the permanent residents of Kashmir, including the power to deny outsiders the right to
acquire or own property in the state. Initially, this step was taken to deter Britishers from
entering the Kashmir valley. Jawaharlal Nehru supported Hari Singh's conditions, and the
matter was brought before the constituent assembly. Eventually, Article 370 3 was inserted
into the Constitution as a temporary, transitional, and special provision. 4 Jawaharlal Nehru

3
Supra Note 1.
4
Prabhash K Dutta, How Kashmir got Article 370: History retold, INDIA TODAY, (Aug 8, 2019 12:45PM),
https://www.indiatoday.in/news-analysis/story/kashmir-situation-article-370-history-1578495-2019-08-08 .

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entrusted N Gopalaswami Ayyangar, a prominent member of the seven-member Drafting
Committee of the Indian Constitution, with the task of drafting the provision aimed at
protecting the special status of Jammu and Kashmir.5

According to this document of Instrument of Accession, only defence, external affairs, and
communications were to be transferred to the Indian government, while control over all other
areas would remain with the ruler, as per the Jammu and Kashmir Constitution Act of 1939.
These conditions were unique to Kashmir's accession to India, unlike the 565 other princely
states that fully integrated with India.6

Clause 7 of the Instrument of Accession underscored that Jammu and Kashmir's accession to
India was conditional upon the state retaining the right to have its constitution and a
significant degree of autonomy.7

WHAT IS ARTICLE 370?

Article 3708 of the Indian Constitution conferred a distinctive constitutional status upon
Jammu and Kashmir, differentiating it from other Indian states. This provision significantly
curtailed Parliament's legislative jurisdiction, granting considerable authority to the Jammu
and Kashmir state legislature. Its primary objective was to ensure the populace of Jammu and
Kashmir possessed full autonomy over their sovereignty, necessitating their consent for the
enactment of applicable laws.9

This provision comprised three key components :-

 Firstly, India was restricted from legislating for Jammu and Kashmir, except
concerning three subjects delineated in the Instrument of Accession. Any legislation

5
Riyaz Wani, Long before revoking Kashmir’s autonomy, India had a ready plan to quell protests, QUARTZ,
(Dec. 3, 2019), https://qz.com/india/1760086/modi-shahs-plan-to-stop-kashmir-protests-after-article-370-move .
6
Anuradha Bhasin, As Supreme Court Rules on Article 370 in J&K, Here’s Why History, Legal Context
Matters, THE WIRE, (March 27, 2024, 6:35 PM), https://thewire.in/history/article-370-understanding-the-
history-legal-contexts-and-why-it-matters .
7
Full text of document on govt.’s rationale behind removal of special status to J&K, THE HINDU, (Aug 05,
2019 01:56 PM), https://www.thehindu.com/news/national/full-text-of-document-on-govts-rationale-behind-
removal-of-special-status-to-jk/article28821368.ece .
8
Supra Note 1.
9
Article 370: A Short History of Kashmir’s Accession to India, ENGAGE,
https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india , (last visited March. 28,
2024).

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 beyond these subjects required the approval of the Jammu and Kashmir Constituent
Assembly.10
 Secondly, only Article 111 of the Indian Constitution, designating India as a 'Union of
States', and Article 37012 itself, were applicable to Jammu and Kashmir. The President
of India could extend other constitutional provisions to Jammu and Kashmir through
executive orders, safeguarding the state's constitution from parliamentary influences.
 Lastly, as stipulated in Article 370(3)13, the special status of Jammu and Kashmir
could not be altered or revoked without the recommendation of the Constituent
Assembly of Jammu & Kashmir.14

Following are some of the provisions of Article 370 15 and its significance concerning
Kashmir's Instrument of Accession :-

The Accession of Kashmir

 According to Jai Shankar Agarwala, in March 1948, Hari Singh announced the
formation of a National Assembly with universal adult suffrage by his council of
ministers to draft a new constitution for Jammu and Kashmir. By June 1949, he
transferred all his powers as ruler to Yuvraj Karan Singh Bahadur to act on his behalf
when Singh was absent. The terms of Kashmir's accession were discussed between
October 1947 and November 26, 1949, coinciding with the Constituent Assembly's
drafting of the Constitution of India. Agarwala argues that Article 370 was needed to
incorporate the existing legal status of the Jammu and Kashmir state into the
framework of the Constitution of India.16

10
Issues over Article 370 - Pros and Cons, History, MBA RENDEZVOUZ, (February 12, 2020 8:24 AM),
https://www.mbarendezvous.com/general-awareness/issues-over-article-370/ .
11
INDIA CONST. art.1.
12
Supra Note 1.
13
INDIA CONST. art.370(3).
14
Challenge to the Abrogation of Article 370, SUPREME COURT OBSERVER,
https://www.scobserver.in/cases/challenge-to-the-abrogation-of-article-370-case-background/ , (last visited,
March. 27, 2024).
15
Supra Note 1.
16
PTI, Explainer: What is Article 370?, THE HINDU BUISNESS LINE, (August 05, 2019, 07:36 PM),
https://www.thehindubusinessline.com/news/national/explainer-what-is-article-370/article28822446.ece .

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Article 370 and the Question of Autonomy:

 Article 37017 acted as the legal mechanism ensuring Kashmir's autonomy. Through
this provision, the President, using the Constitution (Application to Jammu and
Kashmir) Order 1954, had the authority to decide how the provisions of the Indian
Constitution would apply to Jammu and Kashmir, with or without alterations.
However, according to S P Sathe, this decision had to be made after consulting
Kashmiri authorities. The use of terms like "consultation" and "concurrence" in
Article 370 reflects the drafters' intent to safeguard Kashmiri autonomy. This order
has been amended over time to broaden the scope of Indian Constitutional provisions
applicable to Jammu and Kashmir.

Legal Parallels to Kashmir:

 Gazala Peer and Javedur Rahman point out that the special status accorded to
Kashmir is not unique and has parallels in international political history. They note
that both the United States and China have provisions in their constitutions for
granting special status to specific regions, which are compatible with their federal or
unitary systems. They argue that similar measures to Article 370 have facilitated
peaceful coexistence within constitutional frameworks.

ABROGATION OF ARTICLE 370

Despite being denoted as a 'Temporary Provision' in its marginal note, various rulings of the
Supreme Court have interpreted it as having enduring and permanent effect. Critics argue that
Article 370 was designed as a temporary measure and automatically lapsed upon the
dissolution of the Constituent Assembly for Jammu and Kashmir in 1957. Conversely,
proponents contend that Supreme Court decisions affirming the continued validity of the
provision elevate it to the status of a foundational aspect of the Constitution.

In several cases, such as Sampath Prakash and Santhosh Gupta, the Court has invoked Article
370(3)18 to confirm the ongoing applicability of the provision. It has been suggested that
Article 370 remains operative unless revoked by the President through public notification,
subject to the conditions outlined in clause 3, including the recommendation of the Jammu

17
Supra Note 1.
18
Supra Note 13.

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and Kashmir Constituent Assembly. However, it is essential not to overstate the significance
of the Supreme Court's characterization of Article 370 as permanent. While the Court has
referred to its permanence in various rulings, the precise implications of this designation
remain unclear. None of the decisions explicitly equate permanence with being a fundamental
feature of the Constitution

Article 370 19of the Constitution grants special autonomous powers to the State of Jammu and
Kashmir and was formulated under Part XXI of the constitution as a temporary, transitional,
and special provision. The constituent assembly, tasked with recommending articles of the
constitution applicable to the state, dissolved without suggesting the abrogation of Article
370, thereby making it a permanent feature of the Indian Constitution. Despite its temporary
nature, the article remained due to administrative challenges and ongoing conflicts between
India and Pakistan.

Jammu and Kashmir enjoyed special privileges under this status, including having its own
national flag, dual citizenship for its citizens, a longer term for its legislative assembly, non-
applicability of Supreme Court orders until approved by the state government, and its own
criminal code known as the Ranbir Penal Code.20

On August 5th, 2019, the Union Home Minister, Amit Shah, announced the abrogation of
Article 370 and Article 35(A) 21 from the Indian Constitution, leading to the division of the
state into two Union territories: Jammu and Kashmir with a legislature, and Ladakh without
one. This decision by the Modi Government was met with criticism from various opposition
parties across India.22 Mass protests ensued in different cities, accompanied by the house
arrest of major political leaders, internet and phone service shutdowns, and bans on public
movement, raising concerns about threats to democracy. The government defended the move
as necessary to rectify a historical error and integrate Kashmir with the rest of the country,
emphasizing its importance as an integral part of India and in the preamble of the
Constitution.

19
Supra Note 1.
20
Ranbir Penal Code, 1989, No. 12.
21
INDIA CONST. art.35(A).
22
Article 370 and 35(A) revoked: How it would change the face of Kashmir, THE ECONOMIC TIMES,( Aug
05, 2019, 6:18PM), https://economictimes.indiatimes.com/news/politics-and-nation/article-370-and-35a-
revoked-how-it-would-change-the-face-of-kashmir/articleshow/70531959.cms .

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AFTER EFFECTS

The events following August 5th, 2019, included mass arrests and a communication blackout
in Jammu and Kashmir. The region experienced an undeclared curfew, protests against
territorial division in Ladakh and border districts in Jammu, and civil shutdowns. Reports
emerged of night time army raids in South Kashmir. The lockdown and internet ban
adversely affected businesses, healthcare accessibility, and local media operations. Collective
prayers at mosques were suspended, and individuals faced repercussions for mentioning
Article 370. Loss of land and jobs occurred following the removal of Article 35(A).23

In Ladakh, demands were made for special protection under the 6th Schedule of the
constitution. New domicile rules faced protests, although marginalized communities
benefited. The government took action against pro-India parties, with former chief ministers
arrested and released under conditions of silence on Article 370. Assembly elections were
postponed pending delimitation in Jammu and Kashmir, with candidates residing in heavily
secured villages. Militant violence persisted, resulting in casualties among migrants,
Kashmiri Pandit Sarpanchs, security forces, and fruit growers. In the first six months of 2020,
significant numbers of militants and security forces were killed, nearly eradicating militancy
in South Kashmir.24

The abrogation of Article 370 resulted in several implications: Jammu and Kashmir lost its
special status, and Indian constitutional laws now apply to all residents. The Directive
Principles of State Policy and Fundamental Rights in Part IV of the Indian Constitution are
now enforceable in Jammu and Kashmir. Additionally, Article 360 concerning financial
emergencies is applicable, the region no longer has its own flag, and minorities, primarily
Hindus and Sikhs, receive 16% reservation. The Legislative Assembly term is now five years,
Article 35(A)25 was nullified, and Panchayats enjoy the same powers as in other states.
Furthermore, citizens of Jammu and Kashmir no longer have dual citizenship, sparking
concerns among residents regarding their safety and potential government actions affecting
other states, perceived as a threat to democracy.

Following the abrogation, numerous protests occurred. Notably, a large protest in Soura saw
thousands opposing the decision, while reports of protests were either blacked out or
23
Supra Note 21.
24
Ipsita Chakravarty, What exactly did the August 5 decisions achieve in Jammu and Kashmir?, SCROLL IN,
(Aug 05, 2020 · 09:36 AM), https://scroll.in/article/969452/what-exactly-did-the-august-5-decisions-achieve-
in-jammu-and-kashmir .
25
Supra Note 21.

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selectively covered by media outlets. Muslim rights activists, including members of the
Pakistani-American community, demonstrated outside the Indian Embassy in Washington,
condemning the move and demanding independence and justice for Kashmiris. In Punjab,
some farmer unions protested against the abrogation, but their efforts were curtailed by court
orders, with police preventing their march to Chandigarh. The Pro-Khalistani group Dal
Khalsa criticized the abrogation but failed to garner significant support, as many in Punjab
rejected Khalistan and welcomed the abrogation. The Indian government imposed a curfew in
the Kashmir Valley amid concerns of violent protests by separatist and Pakistan-sponsored
groups commemorating the first anniversary of the revocation of Article 370 26 and 35(A)27 as
a "black day."28

Since the revocation of Article 37029 on August 5th, Kashmir has been subjected to a
lockdown and communication blockade, yet significant protests have persisted within the
region. The Indian government has employed tactics to suppress dissent, including targeting
separatist leaders and supporters through law enforcement and investigating agencies, and
dismantling the organizing abilities of separatist parties and civil society groups.

The repeal of Article 370 has engendered insecurity among locals, with Kashmiri Muslims
perceiving it as a threat to the state's integrity and unity, exacerbating insecurity and political
vulnerability in the region. However, proponents argue that the repeal was necessary to
integrate Kashmir with the rest of India, aligning with the slogan of "one Nation one
Constitution." It is believed that this move will promote development and growth in the
valley, as people from across India can now purchase properties in Kashmir, leading to
increased investment and economic prosperity. With Kashmir now a Union Territory, the
government anticipates easier curbing of corruption and terrorism, thereby fostering peace.

A year after the revocation, the Pakistan government adopted a new policy toward the
Kashmir issue, publishing a new map depicting J&K as part of India and Ladakh as part of
Pakistan. However, internal political constraints in Pakistan have limited its ability to respond
forcefully. The decision to revoke Article 370 is primarily viewed as a domestic and
international decision of India, impacting governance in J&K. While some within India
criticize it as an assault on democracy, there is expected opposition from the Human Rights
26
Supra Note 1.
27
Supra Note 21.
28
Manjeet Sehgal, Punjab farmer unions protest against abrogation of Article 370, INDIA TODAY, (Feb 7,
2022 11:35 AM), https://www.indiatoday.in/india/story/punjab-farmer-unions-protest-against-abrogation-of-
article-370-1599434-2019-09-15 .
29
Supra Note 1.

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committee in J&K. Internationally, the fallout is minimal, as it is considered a domestic issue.
With J&K now a Union Territory, governance responsibilities, including law, order, and
defence, have shifted to Delhi, which is expected to enhance efficiency and reduce terrorism
activities.

While the revocation of Article 370 30 represents a decisive moment in India's constitutional
history, its aftermath continues to reverberate across the socio-political landscape, posing
enduring questions about governance, identity, and rights in the region. 31

CONCLUSION

It can be concluded that the integration of Article 370 into the Indian Constitution was shaped
by a nexus of historical, political, and constitutional factors, driven by the unique
circumstances surrounding Jammu and Kashmir's accession to India. Historically, it stemmed
from the need to accommodate the region's distinct status and autonomy. Politically, it served
as a compromise to secure the allegiance of the state and address its concerns about
integration into the Indian Union. Constitutionally, Article 370 32 provided a legal framework
for temporary provisions governing Jammu and Kashmir's relationship with India, granting
significant autonomy to the state. Since its inception, Article 370 profoundly influenced the
dynamic between the Indian government and Jammu and Kashmir, allowing the state a
degree of autonomy while also leading to disparities and tensions. The eventual abrogation of
Article 370 in 2019 marked a significant shift, reshaping the relationship and governance
dynamics in the region.

Additionally, the nullification of Article 370 from the Indian Constitution marked a pivotal
moment in the nation's history. Through a constitutional amendment, the Indian government
effectively revoked the special status granted to the state of Jammu and Kashmir. This
decision was executed through legal channels, demonstrating adherence to the constitutional
framework of the country. The abrogation of Article 370 triggered significant political and
social ramifications, reshaping the relationship between the Indian government and Jammu
and Kashmir

30
Supra Note 1.
31
Gautam Bambawale, Opinion | Global fallout of govt’s move to scrap Article 370, MINT, (05 Aug 2019,
11:27 PM), https://www.livemint.com/opinion/columns/opinion-global-fallout-of-govt-s-move-to-scrap-article-
370-1565027036771.html .
32
Supra Note 1.

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AUTHOR’S OPINION- The removal of Article 370 from the Indian Constitution had both
positive and negative impacts, which merit thorough consideration. On the positive side, its
removal is anticipated to foster growth and development in the Kashmir Valley, enhance
medical and educational facilities for J&K citizens, attract investors leading to economic
growth, and aid in controlling terrorism and corruption. However, there are also negative
consequences such as the loss of dual citizenship for the people of Kashmir, concerns about
threats to the state's integrity and unity, heightened insecurity, and increased political
vulnerability in the region. This decision not only affected Kashmir but also had implications
for India and Pakistan. Article 370 was initially designed as a temporary provision, subject to
the decision of the State Assembly. Its removal has altered the constitutional relationship
between J&K and the rest of India, exacerbating existing conflicts. Additionally, the
abrogation of Article 35(A) has enabled non-residents to buy land and settle permanently in
J&K, raising ethical concerns about the use of power by the central government. Diplomatic
and logistic approaches could have potentially mitigated the situation more effectively.

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BIBLIOGRAPHY

Books

1. DD Basu, Constitution Of India (Lexis Nexis, 2015).

2. MP Jain, Indian Constitutional Law, (Lexis Nexis, 2017).

Legal Database

1. Manupatra
2. Indian Kanoon
3. SCCOnline
4. Sage Journals

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