Purpose of Memorandum
# Focus on Article 370,35A of Indian Constitution, why these articles comes in
our Constitution and How Government deals with it in today’s scenario.
# Try to understand Article 3, Article 6, Article7, Article8, Article9, Article10
and Article147 of The Constitution of Jammu and Kashmir. And how Indian
Government deals with same.
Legal And Political History of Jammu And Kashmir
Before August, 1947 Indian Territories were governed by Britisher directly or
indirectly. Those territories which were governed by Britisher directly called
‗British India‘. In British India there was no role of Indian kings or Nawab.
Indian territories governed by Britisher indirectly were governed by kings or
Maharaja or Nawabs directly. Such territories were called Princely States /
Native States. These were 565 Princely States / Native States. British India
converted into Dominion of Pakistan and Dominion of India on 14th and
15th August, 1947 respectively. Dominion of India converted into Union of India
on January 26, 1950.
According to Mountbatten Plan it was declared that British India would be
divided into two parts, namely, (i) Dominion of India & (ii) Dominion of
Pakistan. According to this Plan Indian States (These are also known as Princely
States / Native States) had three options namely-
(i) to choose Dominion of India, or
(ii) to choose Dominion of Pakistan , or
(iii) to be an independent country . Had the third option been
accepted, Union of India had been divided into 566 parts.
Following the Mountbatten Plan, Independence of India Act, 1947 was passed by
British Parliament. Principle of Lapse of Paramountcy was enshrined in section 7
of Indian Independence Act, 1947. According to this section, after 15th August
all treaty, agreement, accord with any Indian States shall be lapsed, and it
shall be treated that there were no agreement with any princely states. Three
options were given for Indian States. These options were either to choose India
or Pakistan or to be an independent country.
Instrument of Accession become a document which contains conditions to join
country. And this Instrument of Accession was prepared by V.P. Menon. If any
Indian State signed it, it means that State had joined India. August 15, 1947 is
known for power of transfer from British India to Dominion of India.
Mr. Hari Singh king of Jammu & Kashmir signed Instrument of Accession‘ on
October 26, 1947, in Amar Palace, Jammu. Accession of Jammu & Kashmir may be
discussed in two parts namely Pre-Constitutional political and legal history and
Post-Constitutional political and legal history.
Pre-Constitutional Political and legal history
Hari Singh- Mr. Maharaja Hari Singh (1895 -1961) was king of Jammu and Kashmir
during 1925-1961. Lord Louis Mountbatten tried to make Hari Singh understand to
join either India or Pakistan in June 1947. But Mr. Ram Chandra Kak who was the
then Prime Minister and advisor of king was not interest to accept such
suggestions and Maharaja Hari Singh decided to keep Kashmir as an independent
nation. Up to August 15, 1947 he neither joined Dominion of Pakistan nor
Dominion of India. In this way Kashmir became a sovereign nation. Although,
Maharaja Hari Singh had signed ‗Instrument of Accession‘ on October 26, 1947 but
Instrument of Accession was accepted on October 27, 1947. It lost its
sovereignty on October 27, 1947 on which date Instrument of Accession of Kashmir
was accepted by Mountbatten, Governor General of India.
Sheikh Mohammed Abdullah- Mohammed Abdullah Sheikh (5 December 1905 – 8
September 1982) was a Kashmiri politician who played a central role in the
politics of Jammu and Kashmir, the northernmost Indian state. Referred by his
supporters as Sher-e-Kashmir
(Lion of Kashmir), Abdullah was the founding
leader of the Jammu & Kashmir National Conference and the 2nd Chief Minister of
Jammu and Kashmir. He agitated against the rule of the Maharaja Hari Singh and
urged self-rule for Kashmir. He accepted concept of secularism and socialism.
Sign on Instrument of Accession
by Maharaja Hari Singh on October 26, 1947 and
its acceptance on October 27, 1947
October 26 is historical date in the history of Kashmir. On this date Maharaja Hari Singh signed ‗Instrument of Accession and decided to join Dominion of
India. Mountbatten, Governor General of India accepted this Instrument of Accession‘on October 27, 1947. After sign on Instrument of Accession by
Mountbatten, Jammu & Kashmir became part of Dominion of India and lost its
Now it was obligation of India to save the Kashmir. Again meeting
of Defense Committee was held and it was decided to send the army in early
morning to save the Kashmir. In this meeting Mountbatten proposed for plebiscite
in Kashmir after reinitiation of peace and security. Mr. Patel and Mr. Nehru
gave implied consent. This Instrument of Accession was in no way different from
executed by some 500 other states. It was unconditional voluntarily and
absolute. It bound the Jammu & Kashmir legally and constitutionally.
Creation of POK/LOC on January 1, 1949-
After announcement of Mr. Nehru on November 2, 1947 Kashmir‘s issue was referred
to UNO. India raised this issue in Security Council by using Article 35 of the
Charter of the United Nations Organization and complained against Pakistan.
United Nations offered for cease fire on August 13, 1948. Indian Army was
continuously acquiring land of Kashmir from Pakistan. It was the first defeat of
Due to intervention of UNO, on 1st January 1949, cease fire between India and
Pakistan was declared. At the time of cease fire Indian Army had thrown
Pakistani Army from Cargill and Dras but remaining part was in the hand of
Pakistan Army. Land held by Pakistan is called Pakistan occupied Kashmir (POK).
Cease fire line on January 1, 1949 is called Line of Control (LOC).
(2) Post-Constitutional political & legal history
Constitution of Jammu and Kashmir-
The terms of the proclamation of the Maharaja on March 5, 1948 in regard to the
convening of a National Assembly did not meet the requirements of the situations
prevailing at that time. Yuvraj Karan Singh issued proclamation for new
Article 370 of Constitution of India
Shri N. Gopalaswami Ayyangar presented clause 306A (Now it is known as Article
370) in Constituent Assembly on October 17, 1949. It was introduced due to
absence of peace and security in J&K. It was accepted in form of interim system.
Shri N. Gopalaswami Ayyangar elaborated each provision in detail. Clause 306A
became Article 370 after the Commencement of the Constitution of India. Article
370 came into force on January 26, 1950. Wordings of article 370 are following -
Article 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
(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 recognized 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 Maharaja‘s Proclamation dated
the fifth day of March, 1948;
(c) the provisions of article 1 and of this article (370) shall apply in
relation to that State;
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
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 provision 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.
1. Has Article 370 been scrapped?
2. What is the Status of Article 35A?
3. What is Significance of Article 370?
4. What has changed in Jammu and Kashmir?
5. Can presidential order challenged in Supreme Court?
(Jammu and Kashmir no More Special)
Has Article 370 been scrapped?
The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by
President Ram Nath Kovind in exercise of powers conferred by clause (1) of
Article 370 of the Indian Constitution
, has not abrogated Article370. While
this provision remains in the statute book, it has been to withdraw the
special status of Jammu and Kashmir. The presidential order has extended all
provisions of the Indian Constitution to Jammu and Kashmir. It also ordered that
references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as
references to the Governor of the state , and “references to the Government of
the said State shall be construed as including references to the Governor of
Jammu and Kashmir acting on the advice of his Council of Ministers.” This is
the first time that Article 367 (which deals with the interpretation) in respect
of Jammu and Kashmir , and this amendment has then been used to amend 370
What is the Status of Article 35A Now
Article 35A stems from Article 370, and was introduced through a presidential
order in 1954.Article 35A does not appear in main body of constitution-Article
35 is followed by Article 36 –but appear in Appendix-1. Article 35A empowers the
Jammu and Kashmir legislature to define the permanent residents of the state,
and their special rights and privileges.
Presidential Order on 05.AUG.2019 has extended all provisions of Indian
Constitution to Jammu and Kashmir, including the chapter of Fundamental Rights.
Therefore the Discriminatory provisions under Article 35A are now
(Article 6 of Constitution of Jammu and Kashmir talks about Permanent residents
of Jammu and Kashmir.)
What is Significance of Article 370?
The most important feature of federalism in the United States was the compact
between the 13 erstwhile British colonies that constituted themselves first into
confederation and then into a federal polity under the country’s 1791
constitution. India’s Supreme Court in state of West Bengal V. U.O.I
attached the highest importance to an “agreement or compact between states” as
an essential characteristic of federation. In SBI V. Santosh
(2016), the Apex
Court accepted the presence of this compact for Kashmir.Article 370 was an
essential facet of India’s federalism because, like the compact in the United
States, it governed the relationship of the Union with Jammu and Kashmir. The
Supreme Court has held federalism to be part of the basic structure of India’s
The original draft of Article 370 was drawn up by the Government of Jammu and
Kashmir. A modified version of the draft was passed in the constituent Assembly
of India on may 27,1949. Moving the motion , N. Gopalwaswami said that if the
accession was not ratified by a plebiscite, we shall not stand in the way of
Kashmir separating herself away from India.
On Oct 17, 1949 Article 370 was included in India’s Constitution by the
Constituent Assembly. However, the drafting of the Constitution ended on Nov26,
1949- Article 370 had been included before the Constitution was adopted.
Can Presidential Order be challenged in Supreme Court?
It will most likely be challenged. However, the Supreme Court will consider
that Article370 does, indeed, give sweeping powers to the President. It might
also take two to three years for a constitution Bench of the court to decide
such a challenge.
The possible grounds of challenges could include the argument that the
conversion of Jammu and Kashmir into a U.T is violation of article 3,as the Bill
was not referred by the President to the state Assembly.
Also, can the
constituent Assembly mean Legislative Assembly?
Are the Governor and state Government one and same?
The constitution relevance of the Instrument of Accession will also be examined
by the court.
Whether Article 370 was part of basic structure will likely be considered. The
use of Article 367 in amending 370will also be examined.
How Central Demolished The Tunnel In One Stroke
Central Government on Monday (05.aug.2019) formally declared that Article 370
will cease to operate, they cease to operate that Article which already dead for
all its practical purposes.
In supreme Court , the challenge to Article 370 of the constitution , filed
in the form of Special Leave Petition by Kumari Vijayalakshmi jha, 2017 ( Kumari
Vijayalakshi JhaV. Union of India &Anr on 11 April ,2017), raised on
interesting issue before the Court.
Jha, whose prayer was first dismissed by
Delhi High Court earlier, argued that Article 370 was a temporary provision
which had lapsed with the dissolution of the J&K Constituent assembly on January
26, 1957. She also sought a declaration from the Supreme Court that the
constitution of Jammu and Kashmir, in view of the lapsing of Article 370, was
void, inoperative and ultra vires.
If what Jha claimed was correct , the Centre on Monday(05.08.2019), appears to
have scrapped a nonexistent provision of the constitution. The maximum life of
article 370, she claimed, was prescribed up to the existence of the J&K
Constituent assembly, and with artilce370 ceasing to exist, after the
dissolution of the state constituent assembly, it requires a formal declaration
from the court to avoid any scope for ambiguity.
How Did Delhi High Court Dismiss Jha's Petition Earlier?
The Delhi H.C relied on Supreme Court’s Judgement in-
State Bank Of India V Santosh Gupta And Anothers
, 2017,2SCC 538. The
judgement in this case, heard by the bench of Kurain Joseph J. & R.F Nariman J.,
was delivered on Dec16,2017, and authored by Nariman J.
In Para11, the bench held that the state of Jammu and Kashmir, though a state
within meaning of Article1 of the constitution of india, has been accorded with
the special status from the very beginning because of certain events that took
place at the time that the erstwhile rule of Jammu and Kashmir acceded to the
Indian Union. (and these events had been set out in details in case of Prem
Nath Kaul V. State of Jammu And Kashmir
It was held in JHA’s case Delhi High Court rejected the
Petition that argued Article 370 was Temporary and that its continuation was a
fraud on the Indian Constitution.
Why This Move Is Correct
1. J&K Women’s Rights.
2. Dalit Rights.
4. Voting Rights to residents also, who settled here last few years.
5. Equal Rights to all Indian.
6. Security situation can be handled better.
Salient Feature of Jammu & Kashmir Reorganization Bill, 2019
Consequent to the promulgation of the Constitution (Application to Jammu &
Kashmir) Order,2019, and with a view to change the geographical and political
status of the present state of Jammu and Kashmir , the Parliament Passed the
Jammu and Kashmir ( Reorganization) Bill,2019.once the bill gets the assent of
the President, it will result in the formal bifurcation of the present state of
Jammu and Kashmir into two successor Union Territories a UT of Jammu and Kashmir
, and U.T of Ladakh.
According to Govt
1. The Ladakh division of the state of Jammu and Kashmir is geographically
large but sparsely populated, with a difficult terrain and there has been a long
pending demand of people of Ladakh to give it status of a UT.(it may be wrong)
2. The prevailing internal security situation and cross border terrorism in
the existing state of Jammu and Kashmir.
Legislature and Executive-
Article239A of the Indian Constitution, which applies to the UT of Puducherry ,
shall also apply to the UT of Jammu and Kashmir. Thus for the UT of Jammu and
Kashmir, there shall be a Legislature with a council of Legislature with a
council of ministers However , the UT of Ladakh shall not have a Legislature.
What The J&K Reorganization Bill Means For Judiciary-
The Jammu & Kashmir Reorganization Bill, 2019 passed by Parliament on
Tuesday(06.08.2019), bifurcates the state into union Territories of J&K and
This Reorganization will entail the following consequences as regards Judiciary-
# The High Court of Jammu & Kashmir will be a common High Court for U.T of J&K
and Ladakh (section75).
# Judges of exiting H.C of J&K will continue in the High Court for both the UTs.
# The law in force in respect of procedure in HC of J&K will continue in the
Common HC for the UTs.
Advocate General for UT of J&K
The Lieutenant Governor can appoint a person who is qualified to be appointed
a judge of the High Court, to be Advocate –General for the Union Territory of
Jammu and Kashmir.
The Advocate’s Act, 1961 has been amended to replace the Bar Council of Jammu
and Kashmir with the Bar Council of Jammu and Kashmir, and Ladakh
. It has
been provided that the advocates enrolled with the Bar Council of State of Jammu
and Kashmir and practicing before the HC of Jammu and Kashmir may continue to be
members of new Bar Council.
Administration of the New U.Ts-
Both the UTs shall be administered by the President acting through the L-G., to
be appointed by him under Article 239 of the Indian Constitution.
For the time being, the Governor of the existing State of Jammu and Kashmir
shall become the Lieutenant Governor for both the UTs, and shall remain as such
foe a period determined by the President of India. Thereafter , the President
may appoint different Lieutenant Governors for the new UTs.
One of the most significant changes that the bill brings is that it repeals 164
states Laws and makes 108 Central Laws applicable to both the UTs by omitting
the words “except the state of Jammu and Kashmir “from the provisions of those
Relation between Constitution of India and Constitution of Jammu & Kashmir-
Article 370 deals temporary provisions with respect to Jammu and Kashmir.
According to section 3 of the Constitution of Jammu & Kashmir, 1957 the State
of Jammu and Kashmir is and shall be an integral part of the Union of India‘.
Section 3 is the basic feature of Constitution of Jammu & Kashmir. According to
section 147 of the Constitution of Jammu & Kashmir any Bill or Amendment shall
not be moved in either House to change section 3 or the provisions of the
Constitution of India as applicable, in relation to the State.
Jammu And Kashmir After Article 370
1. No Dual citizenship.
2. Central law can directly apply.
3. No separate law for J & K.
4. Indian citizens from other state can buy property and land.
5. No Two flag.
6. Election after every 5 year.
7. Police will managed by centre.
8. Centre can declare financial Emergency under Article 360 of Indian
To ameliorate the conditions of Jammu and Kashmir, researchers are giving
(1) There is acute poverty and unemployment in J&K. Condition of education is
another serious problems. On these issues State and Central Government should do
some work seriously.
(2) No need to create confusion amongst people of Jammu and Kashmir. Article
370 must not be repealed without consciousness of public of Jammu and Kashmir.
(3) Merely repealing of Article 370 is not panacea of all problems. But those
Presidential Orders and State laws which are against basic structure of the
Constitution and humanity must be repealed. Article 35A must be repealed.
(4) Use of Military force is not final solution of J&K.
(5) National Parties are creating fear among people. Dividing society on the
basis of religion is fatal for unity and integrity of nation. For creating fear
or confusion on the basis of religion there is need of harsher punishment with
It is also responsibility of public of J&K to strength unity and integrity of
India. Division only on the basis of religion is not justified. Most of the
people were Muslim. Still Pakistan divided into two Parts. Principle of nation
first must be accepted.
Humanity is above all. People of J&K are not exception of this. Acute poverty,
unemployment education, poor health facilities, increasing offences, gender
biasness and funding of Pakistan for terrorist activities are some issues must
be solved immediately. National and Regional parties try to develop J&K. These
Parties were always involved in creating and showing illusory problems and
fears. Government opted the way for introducing this Bill is, wrong for a
We can say it as A Integration Without Integrity
. in which way
current Government use to Introduced this Bill, have a look-
On June20, 2018, under Article 92 of Constitution of J&K, the State was placed
under Governor’s rule after the union ruling party withdrew support to its
alliance partnership with PDP. 6 months later, in December 2018, Governor’s rule
got converted into President’s Rule ( Article 356 of Indian Constitution).
Let us clear about the implication of these tactical manoeuvres of carefully
transferring power from a democratically elected assembly, to Governor’s Rule
and President’s Rule.
It implies that all the powers of the Government of the state are now vested in
the Governor under the superintendence of P.M. Given these conditions of severe
democratic deficit, the government wrote up an order scrapping Article370, sent
it to itself for “concurrence”, and had it signed by the President.
And also in the light of Supreme Court’s Judgement, it is crystal clear that
Jammu and Kashmir has special status for few reasons. The Above mention Bill is
not referred by the President to the state Assembly is also a week zone.
Now its all upon Supreme Court that how Supreme Court deals with this Bill in
the light of its own Precedents.
Table of Contents-
1. Jammu and Kashmir.
3. Issues.(Article 370 and Article 35A), of Indian Constitution
4. The Constitution (Application to Jammu and Kashmir) Order,2019
5. Precedent cases of Hon’ble Supreme Court, and Delhi High Court.