ARTICLE 370 OF CONSTITUTION OF INDIA

1) What is Article 370?

Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous
status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with "Temporary,
Transitional and Special provisions", the state of Jammu & Kashmir has been accorded special status
under Article 370. All the provisions of the Constitution which are applicable to other states are not
applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister
in place of chief minister.

Historical Background
Immediately after independence, a major column of armed men from Pakistan had invaded
Kashmir and they were nearly successful in capturing Srinagar. Confronted with the chances of
losing Kashmir to Pakistan, Maharaja Hari Singh requested help from India. Immediately, Patel’s
aid V P Menon arrived in Srinagar and told the maharaja that India could take action only if
Kashmir acceded to India. It is widely believed that Maharaja wanted to keep its independence but
reluctantly acceded to India due to the grave situation created by the Pakistani invaders. Thus, on
October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession.
Here, we need to note that the accession was partly provisional. For example, clause 7 of this
instrument read that Maharaja was NOT committed to accept the future constitution of India.
Similarly, clause 8 said that nothing in the instrument affected the sovereignty of the Kashmir. The
subjects that were surrendered to India included Defence, External Affairs, Communications and
some ancillary subjects such as elections and jurisdiction of courts in these three matters.
With such instrument in hands, India had sent its forces to Kashmir. Later, Sheikh Abdulla, who
was under custody, was released by Maharaja Harsingh. Abdullah, although condemned the
Pakistani attack on Kashmir yet asserted the sovereign right of the people of Kashmir to decide
their future. In 1948, he was made the prime minister of Kashmir.
Meanwhile regrettably, Kashmir issue was taken to UN by Nehru and the issue was given a tag of
international dispute between India and Pakistan. Not only that, India also made a promise of
plebiscite in Kashmir. However, the idea of separate Kashmir was overruled.
By 1949, Sheikh Abdullah and Maharaja Harisingh decided that Kashmir should remain united with
India with maximum possible autonomy. India granted a special status to Kashmir in article 306A
of the draft constitution. This special status was given as per clause 7 of the Instrument of
Accession. At that time, Hasrat Mohani had objected the special status. But he also expressed
hope that in due course Kashmir would become ripe for same kind of integration as similar to
other states. The Article 306A was enshrined as Article 370 in the constitution as a “temporary
provision”. Sheikh Abdullah did not want that to be a temporary provision and insisted for his iron
clad guarantee of autonomy but India did not accept that.
Implications of Article 370
Article 370 specifies that except for Defence, Foreign Affairs, Finance and Communications the
Indian Parliament needs the State Government’s concurrence for applying all other laws.  This has
some peculiar implications as follows:
Applicability of parts
 Most provisions of the Constitution which are applicable to other states are not applicable to J&K.
Part VI in whole is not applicable to Jammu & Kashmir.
 Jurisdiction of Indian Parliament
 The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir is confined to the
matters enumerated in the Union List, and also the concurrent list. There is no State list for the State of
Jammu and Kashmir. At the same time, while in relation to the other States, the residuary power of
legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary powers belong to the
Legislature of the State, except certain matters to which Parliament has exclusive powers such as
preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of
India.
 The power make laws related to preventive detention in Jammu and Kashmir belong to the
Legislature J & K and not the Indian Parliament. Thus, no preventive detention law made in India extends
to Jammu & Kashmir.
 Kashmir enjoys some other privileges over and above the other states of India. For example, the
plenry power of parliament with respect to alteration of the name or territories of the State (Art.3) does
not extend to the state. Similarly, International treaty or agreement affecting any part of the territory of
the state (Art.253) doesn’t extend to Jammu and Kashmir. Article 253 empowers the Parliament to make
any law for the whole or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any international conference,
association or other body. Any action of the Union Legislature or Union Executive which results in
alteration of the name or territories or an international treaty or agreement affecting the disposition of any
part of the territory of Jammu and Kashmir requires the consent of the State Legislature.
Emergency
 Initially, Article 356 and 357 did not apply to India. However, these two articles related to
suspension of the Constitutional machinery in the state have been extended to the state by the
Amendment Order of 1964. However, Failure means failure of the constitution machinery as set up by the
Constitution of the State and not the provisions in part VI of the Constitution of the India. As a result,
where the failure of the Constitutional machinery takes place in Jammu & Kashmir, two types of
Proclamation may be made
 The President’s Rule under Art. 356 of the Indian Constitution (as in the case of the other
States of the Indian Union)
 The Governor under section 92 at the Constitution of J&K for which there is no counter part
in any other State of India.
 The Union of India has no power to declare Financial Emergency under Article 360 in the state.
Fundamental Rights
 Apart from the rights enjoyed by all states of India, some special right as regards employment,
acquisition of property and settlement have been conferred on permanent resident of the State by
constitution of Jammu and Kashmir. Right to property is still a fundamental right in the state.
DPSP & Fundamental Duties
 Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the
Constitution are not applicable to J&K.
Amendment of the Constitution
 The provisions of Art. 368 of the Constitution of India are not applicable for the amendment of the
State Constitution of Jammu & Kashmir. The Jammu & Kashmir assembly by two third majority amend
its own constitution (except in those matters that are related to relationship of the State with the Union of
India)
 The Union has no power to suspend the Constitution of J&K.

Jammu & Kashmir High Court

 The High Court of J&K has limited powers as compared to other High Courts within India. It cannot
declare any law unconstitutional. Unlike High Courts in other states, under Article 226 of the
Constitution, it cannot issue writs except for enforcement of Fundamental Rights.
Amendment or abrogation of Article 370
Article 370(3) reads:
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“.
Now the question is that the J&K has no longer a constituent assembly. This poses a moot
question if the article can be amended or removed by Indian parliament.  Some jurists say it can be
amended by an amendment Act under Article 368 of the Constitution and the amendment
extended under Article 370(1).
Demand for Abrogation of Article 370
The arguments in favour of and against the abrogation of article 370 are equally valid. Those who
argue for abrogation of the article say that it has created certain psychological barriers and is root
cause of all the problems. Moreover, Article 370 encourages secessionist activities in the country.
It is also argued that at the time of enactment, it was a temporary arrangement which was
supposed to erode gradually. This article is a constant reminder that Jammu and Kashmir is still to
merge fully with India.
Those who argue against the article 370 say that the abrogation will cause serious consequences.
They ask why there are separatist activities in other states which have not such special treatment
by constitution. According to them, abrogation of this article would also violate the solemn
undertaking by India given to state through the instrument of accession.

The Supreme Court on Tuesday said that Article 370 of the Constitution was not a "temporary
provision". It was responding to a plea challenging the validity of Article 370, which grants a special
status to the state of Jammu and Kashmir. The petition was filed by Kumari Vijayalakshmi Jha,
seeking a declaration that Article 370 was temporary in nature.The petitioner had claimed before the
high court that Article 370 was a temporary provision that had lapsed with the dissolution of the
Constituent Assembly in 1957.A Bench of judges Adarsh K Goel and R F Nariman said, "The issue
concerned is covered by the judgment of this court in the 2017 SARFAESI matter, where we have
held that despite the headnote of Article 370, it is not a temporary provision."

Can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public
notification, declare that this Article shall cease to be operative but only on the recommendation of the
Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new
Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation.
Of course, Parliament has the power to amend the Constitution to change this provision. But this
could be subject to a judicial review which may find that this clause is a basic feature of the
relationship between the State and the Centre and cannot, therefore, be amended.

It is widely debated is Article 370 a source of gender bias in disqualifying women from the State of
property rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the
State Constitution — based on the notifications issued in April 1927 and June 1932 during the
Maharajah’s rule — was thought to be discriminatory. The 1927 notification included an explanatory
note which said: “The wife or a widow of the State Subject … shall acquire the status of her husband
as State Subject of the same Class as her Husband, so long as she resides in the State and does not
leave the State for permanent residence outside the State.” This was widely interpreted as suggesting
also that a woman from the State who marries outside the State would lose her status as a State
subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with
one judge dissenting, held that the daughter of a permanent resident of the State will not lose her
permanent resident status on marrying a person who is not a permanent resident, and will enjoy all
rights, including property rights.

Has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providing
space, in matters of governance, to the people of a State who felt deeply vulnerable about their
identity and insecure about the future. It was about empowering people, making people feel that they
belong, and about increasing the accountability of public institutions and services. Article 370 is
synonymous with decentralisation and devolution of power, phrases that have been on the charter of
virtually every political party in India. There is no contradiction between wanting J&K to be part of the
national mainstream and the State’s desire for self-governance as envisioned in the Article.

Separatism grows when people feel disconnected from the structures of power and the process of
policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It
can be reasonably argued that it is the erosion of Article 370 and not its creation which has
aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in Srinagar
in 1982, leaders of virtually all national parties, including past and present allies of the BJP, declared
that the “special constitutional status of J&K under Article 370 should be preserved and protected in
letter and spirit.” A review of its policy on Article 370, through an informed debate, would align today’s
BJP with the considered and reflective approach on J&K articulated by former Prime Minister Atal
Bihari Vajpayee. Only then would the slogans of Jhumuriyat, Kashmiriyat and Insaniyat make real
sense.