Article 370: A Controversial Constitutional Provision in Indian History
On 11 December 2023, five senior-most judges of the Supreme Court upheld the
Union government's action to abrogate Article 370, which granted special status
to Jammu and Kashmir (J&K). The Court further refused to comment on the
constitutionality of the reorganization of J&K state into two Union Territories:
Jammu and Kashmir and Ladakh.
Chief Justice D.Y. Chandrachud on behalf of himself, Justices B.R. Gavai and
Surya Kant, wrote 352 pages of the 476 page judgement. Justice S.K. Kaul wrote
121 pages and Justice Sanjiv Khanna wrote a concurring judgement of three pages.
Hari Singh, the Maharaja of Jammu and Kashmir, signed the Instrument of
Accession in 1947, which is where Article 370 had its start. This document
preserved a large amount of the state's autonomy while enabling it to join the
recently established Union of India. The provision of autonomy over internal
affairs, with the exception of defence, communications, and international
affairs, was a temporary measure outlined in Article 370, which was bestowed
upon Jammu and Kashmir.
To represent the special circumstances surrounding Jammu and Kashmir's admission
into the Union, Article 370 was added to the Indian Constitution. With regard to
topics not covered by the Instrument of Accession, the clause limited the Indian
Parliament's authority and permitted the state to have its own constitution and
flag. Although the state was granted more authority to implement certain of the
Indian Constitution's provisions through a number of Presidential Orders
throughout the years, the state's unique identity was mostly preserved.
Controversies and Criticisms
Although Article 370 was once intended to be a transitional and temporary
measure, it has now become a divisive topic. Critics contended that Jammu and
Kashmir's unique status exacerbated separatist sentiments and impeded the
state's integration with the rest of India. The clause also resulted in Jammu
and Kashmir having different laws, which divided the Indian Union's legal and
As talks about the prejudice that some groups in the state experience gathered
traction, the dispute grew more intense. Critics cited the gender-based
discrimination coming from Article 35A, a clause that was adopted in 1954 by a
Presidential Order and gave Jammu and Kashmir citizens unique rights and
advantages. This clause has drawn criticism for upholding inequalities and
violating the goals of a unified civil code.
The Abrogation of Article 370
August 2019, when the Indian government, led by Prime Minister Narendra Modi,
made the historic decision to revoke Jammu and Kashmir's special status, marked
a turning point in the history of Article 370. The move, according to the
administration, is necessary for the region's socioeconomic growth and for
completely integrating it into the national economy.
Alongside the repeal of Article 370, the state was divided into Jammu & Kashmir
and Ladakh, two Union Territories. Reactions to this judgement were conflicting
on a national and worldwide level. Supporters praised the government's audacious
decision as a step towards national unification, but others questioned whether
it was constitutionally appropriate to take such action and worried about its
possible effects on the region's stability.
Impact and Aftermath
The political and legal climate in Jammu and Kashmir has changed significantly
as a result of Article 370's repeal. The area saw the abolition of its
independent constitution and flag, and is now directly managed by the national
government. When Jammu and Kashmir joined the Indian Union, national laws and
policies were applied there as well, bringing the area into compliance with the
But the action also raised security issues and heightened tensions, prompting
the implementation of limitations, communication outages, and the deployment of
more troops in the area. With some voicing worries about the possible effects on
bilateral ties and regional stability, the international community kept a
careful eye on the events.
The Chief Justice of India, Dr. DY Chandrachud, along with Justices Sanjay
Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, JJ., made up the
five-judge Constitution Bench. The bench unanimously upheld the Union's action
to revoke Article 370 of the Constitution and ordered the State to be restored
to its original statehood as soon as possible. Three judgements were rendered:
Justices Kaul and Khanna wrote separate but concurring judgements, while Dr. DY
Chandrachud, CJI, wrote one on behalf of himself, BR Gavai, and Surya Kant, JJ.
Constitutional Order 272 and 273?
During the duration of a proclamation under Article 356(1)(b), the President
issued Constitutional Orders ('CO') 272 and 273, which abolished Article 370 and
applied the Indian Constitution to the State of Jammu with Kashmir. Article 356
of the Constitution was suggested in a report that was sent to the President on
November 21, 2018, the day the Governor dissolved the State's Legislative
Assembly in accordance with Section 53(2) of the State Constitution.
The President proclaimed the State to be under President's rule on December 19,
2018, in accordance with Article 356. Subsequently, on August 5, 2019, the
President issued CO 272, the Constitution (Application to Jammu and Kashmir)
Order 2019, which superseded all previous Constitution Orders and applied all of
the provisions of the Indian Constitution.
This included the modification of Article 367(4) and the application of the term
"Constituent Assembly" to the State in the proviso of Article 370(3), which had
previously applied to the Legislative Assembly. The Parliament took on the role
of the State's legislative as well. Subsequently, the Lok Sabha approved and the
Rajya Sabha enacted the Jammu and Kashmir Reorganisation Bill 2019 under the
proviso to Article 3.
With the passage of the Jammu and Kashmir (Reorganisation) Act, 2019 (the "Reorganisation
Act"), Parliament divided the state into two Union Territories: Ladakh, which
lacks a legislature, and Jammu and Kashmir, which allowed for the state's
reogranization. The President issued CO 273 on August 6, 2019, in accordance
with the advice of the Lok Sabha, in accordance with Article 370(3) of the
Constitution, as revised by CO 272, which made Article 370 no longer applicable
to the State.
With the assent of the President, the Union Ministry of Home Affairs, exercising
the authority granted by Section 2(a) of the Reorganisation Act, issued a
notification on August 9, 2019, putting the provisions of the Act into force.
Thus, Article 370 of the Constitution-which gave the State a distinctive
position for governing-was essentially revoked.
No sovereignty existed in the State of Jammu and Kashmir
As the Court pointed out, Maharaja Hari Singh created the State's Legislative
Assembly, or "Praja Sabha," and gave it some legislative authority, but he
nonetheless maintained control over all legislative, executive, and judicial
affairs. This, according to the Court, demonstrated the State's internal
autonomy. Jammu and Kashmir was one of the Princely States that became
independent after India gained its freedom since they had not ratified the
Instrument of Accession (IoA).
The Court also pointed up this fact. Thus, the king, Maharaja Hari Singh, had
the ultimate authority over the State. In the immediate aftermath, the Court
observed that on October 26, 1947, the Maharaja signed the Instrument of
Absorption, so assuming full control over the aforementioned State.
Upon reviewing a note from the Ministry of States concerning the special status
granted to certain Indian states, the Court found that it made clear that Jammu
and Kashmir's accession would continue on the pre-existing basis until it was
possible to bring the state up to par with other states.
Until then, the state would be considered a part of Indian territory until
Parliament enacted legislation extending the reach of the Constitution to
Kashmir. Accordingly, the Court held that the unique provision for Jammu and
Kashmir did not represent a component of sovereignty, but rather was necessary
at the time due to the State's circumstances and was meant to last until the
State could be placed on par with other States.
The Proclamation, which Yuvraj Karan Singh issued on November 25, 1949,
indicated that the Constitution would regulate the State-Union of India
relationship after it was adopted by the Constituent Assembly, the Court further
stated. The Court so declared that the Proclamation represented Jammu and
Kashmir's complete and total ceding of sovereignty to India - to her sovereign
people - via its sovereign ruler. The State's Constitution blatantly lacks any
mention of sovereignty, the Court said after comparing the Preambles of the two
The court further cited SBI v. Santosh Gupta, (2017) 2 SCC 538, whereby it was
decided that permanent residents were not dual nationals of the Union of India
and the State of Jammu and Kashmir. They actually only hold citizenship in the
Union of India, which is a single sovereign entity. After reviewing Article 1 of
the Constitution, which states that India is a Union of States, and Article
370(1)(c), which restates that Article 1 will be applicable to the State, the
Court concluded that the combination of the State with the Union of India was an
Constitutional validity of the Proclamations issued under Article 356 of the
Constitution and Section 92 of the Constitution of Jammu and Kashmir
The Court observed that shortly after the Jammu and Kashmir Proclamation issued
under Article 92 of the Constitution came to an end on December 19, 2023, the
President issued a Proclamation under Article 356 of the Constitution on the
same day, and the Parliament further extended the Presidential rule for an
additional six months.
The Court further observed that no challenge was brought to the Proclamations
under Article 92 until after their terms had expired, and that no challenge was
filed to the Proclamations under Article 356 right away. Following the
President's issuing of CO 272 and 273, complaints were made against the
Governor's and President's proclamations as well as both the CO.
The Presidential authority granted by Article 356 to make a Proclamation,
according to the Court, is extraordinary and has significant implications for
both the overall federal structure and the State's sovereignty. The
Proclamations made under Article 356 of the Constitution and Section 92 of the
Constitution of Jammu and Kashmir cannot be constitutionally challenged on the
grounds of laches, the Court further stated.
But the Court felt that the current challenges to the legality of the
aforementioned Proclamations were untenable since the main issues raised in the
writ petitions were the repeal of Article 370 and the acts made while the
President was in office, not separately to President's rule by itself. The
petitioners had challenged the Proclamations, but the Court ruled that no remedy
could be given to them because the Presidential Proclamation had been repealed
on October 31, 2019.
Article 370- A temporary Provision
The Court held that there were two reasons why Article 370 was introduced:
first, it was intended to serve as a transitional measure, providing for a
temporary solution in light of the unique circumstances resulting from the
State's ongoing war, until the State's Constituent Assembly was established and
able to decide on the Union's legislative authority over matters not
specifically listed in the Instrument of Accession and ratify the Constitution.
The Court identified that the provision's marginal note refers to "temporary
provisions with respect to the State of Jammu and Kashmir," using wording found
in Part XXI of the Constitution, which deals with transitional and temporary
provisions. Thus, the Court determined that an interpretation of Article 370's
wording would likewise suggest that it is a provision that is only meant to be
The Challenge to CO 272 and 273
Article 370(3) allows the President to proclaim that "this article" will no
longer be in effect or will only continue to be in effect with the exclusions
and adjustments that he specifies, as the Court pointed out. The Court clarified
that the proviso to Article 370 stipulates that the recommendation of the
State's Constituent Assembly must be obtained before the President may take
action under this authority, and that the President may exercise this authority
by publishing a public statement.
The Court observed that the CO 272 was issued in accordance with Article
370(1)(d) and that its Paragraph 2 applies the whole text of the Indian
Constitution to the State, 'modifying' Article 367 by means of the newly
inserted subclause (d) of the inserted clause (4). As to the Court's ruling, the
phrase "Constituent Assembly of the State referred to in clause (2)" in the
proviso of Article 370(3) will henceforth be interpreted as the "Legislative
Assembly of the State."
The Court relied on the ruling in Mohd. Maqbool Damnoo v. State of Jammu and
Kashmir, (1972) 1 SCC 536, to establish that the Union and the State must
work together to exercise the power under Article 370(1)(b) and (d). The Court
further stated that the power cannot be used if the President obtains his own
consent while using it. In this instance, however, the Court determined that the
President's request for the Union Government's approval rather than the State
Government's in order to issue CO 272 was lawful.
This is because, according to Article 370(3), the President is empowered to
unilaterally declare the abolition of Article 370, and the cooperation and
consultation between the two entities will only be required in situations where
the State Constitution would need to be amended in order to apply the provisions
of the Indian Constitution to the State.
The Court further clarified that the idea of cooperation and consultation was
not necessary to be adhered to since Jammu and Kashmir would be affected by the
application of all Constitutional provisions through the exercise of power under
Article 370(3) that Article 370 is no longer in effect is equivalent to using
As a result, the Court determined that the President's acquisition of the Union
of India's consent on behalf of the State Government did not constitute mala
fide because it was not necessary for the State Government to concur in order to
exercise the power under Article 370(1)(d) to apply all of the Constitution to
the State. The Court also declared that the intent behind a legal provision is
just as significant as its wording.
The Court clarified that although at first glance the change proposed by
Paragraph 2 of CO 272 may seem to be a "modification" or amendment of Article
367, in reality, it amends Article 370 itself. Although it refers to Article 370
as an amendment, it actually amends Article 367.
The Court concluded that allowing modifications through a convoluted process
would have terrible consequences, citing many experts on the subject. Therefore,
the Court declared that changes cannot be implemented by avoiding a process that
has been established specifically for that reason.
Whether the exercise of power under Article 370(3) in issuing CO 273 was
The Court clarified that the President possessed the authority to issue a
notification stating that Article 370(3) is no longer applicable without the
recommendation of the Constituent Assembly. The President's continuous exercise
of power under Article 370(1) suggests that the process of gradual
constitutional integration is still in progress.
As a legitimate use of authority, the President's proclamation made in
accordance with Article 370(3) represents the conclusion of the integration
process. As a result, the Court determined that the President had legitimately
used his authority by issuing CO 273.
Validity of the Reorganisation Act: On Substantive Grounds
The State of Jammu and Kashmir would regain its statehood, the Centre has
assured the Court, and its current position as a Union territory is only
temporary. The Court further remarked that the restoration of statehood to Jammu
and Kashmir will not impact the status of the Union Territory of Ladakh.
The Court concluded that it was unnecessary to ascertain whether Article 3
permitted the State of Jammu and Kashmir's restructuring into the Union
Territories of Ladakh and Jammu and Kashmir. As per Article 3(a) read in
conjunction with Explanation I, which allows for the formation of Union
Territories by the separation of territory from any State, the Court decided
that Ladakh's position as a Union Territory was upheld.
The Court expressed worry about the security situation in the area and ruled
that direct elections to the Legislative Assemblies, one of the most important
aspects of India's representative democracy, could not be postponed until
statehood is restored. Consequently, by September 30, 2024, the Court ordered
the Election Commission of India to take action in order to hold elections for
the Legislative Assembly of Jammu and Kashmir, which was established in
accordance with Section 14 of the Reorganisation Act.
On Procedural GroundsThe Court declared that after it was determined that CO 272 was lawful, all of
the Constitution's provisions applied to the State and that any exceptions or
changes to those sections that applied to Jammu and Kashmir were no longer
With the help of a timeline, the Court clarified that the President issued CO
272 on August 5, 2019, and that same day, the Reorganisation Bill was sent to
the Rajya Sabha and Lok Sabha to solicit their opinions regarding the first
proviso to Article 3. The Rajya Sabha then passed the Reorganisation Act, and
the Lok Sabha passed it the following day.
The Court therefore held that CO 272 rendered the second proviso of Article 3 as
it related to the State of Jammu and Kashmir null and void at the time the
Reorganisation Bill was presented. As a result, the Court determined that the
question of whether Article 356(1)(c)'s ability to suspend the second proviso
was still valid was no longer relevant.
In his concurring opinion, Justice Sanjay Kishan Kaul unanimously concluded that
Article 370 of the Constitution was a transitional measure intended to be
temporary rather than a permanent characteristic of sovereignty.
With his own unique justification, Justice Sanjiv Khanna agreed with the two
rulings. According to him, turning a state into a union territory has serious
ramifications, including violating federalism and depriving the people of the
state of an elected state government. Justice Khanna stated that strict
adherence to Article 3 of the Constitution and the provision of extremely
compelling justification are required for the conversion or formation of a Union
Territory from a State.
Once seen as a representation of the precarious balance between autonomy and
integration, Article 370 has had a lasting impact on Indian history. The
relationship between the federal government and Jammu and Kashmir underwent a
paradigm shift as a result of its abrogation, which signaled a dramatic break
from the status quo. The legacy of Article 370 remains a topic of controversy as
the area navigates the possibilities and problems that occur post-abrogation,
reflecting the intricate dynamics of Indian constitutionalism and regional
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