Article 370 of the Indian Constitution discusses the special status of the
Jammu and Kashmir state. Article 370 was inserted in Part XXI of the Indian
Constitution. Article 370 of the Indian constitution grants special status to
the State of Jammu and Kashmir in terms of the application of laws.
However, the exception lies in laws that are related to external affairs and
matters related to defence. The state has the power to have its own constitution
and a separate flag and to deny property rights in the region to outsiders,
which ultimately means that the state's citizens shall live under different
laws, rules and regulations than the laws applicable in the Union of India.
History Of Formulation Of Article 370
On 26th October 1947, an Instrument of Accession,1947 was signed between
Maharaja Hari Singh and the Government of India. After this, Jammu and Kashmir
became part of India.
On 17th October 1949, Article 370 was incorporated into the Constitution of
India. Finally, on 26th January 1950 the Constitution of India came into effect,
and so did Article 370 of the
Constitution. Article 1 of the Indian Constitution declares Jammu and Kashmir as
the State of India. Article 370 of the Indian Constitution talks about the
temporary status of Jammu and Kashmir.
The Constitution Of Jammu And Kashmir Came Into Effect
On 14th May 1954, a presidential order named 'The Constitutional Application to
Jammu and Kashmir's order, 1954 was passed by Dr. Rajendra Prasad. Article 35 A
was included in the Constitution through this presidential order defines
"permanent residents" of the state. Next, on 17th November 1957, the
constitution of Jammu and Kashmir came into force.
The Constitution of Jammu and Kashmir also entails that Jammu and Kashmir are
also an integral part of India.
Instability Of Governance In Jammu And Kashmir
The Armed Forces Special Powers Act, of 1990 was imposed and has been in force
since then. In the year 2015, Bhartiya Janta Party (BJP) formulated a government
in Jammu and Kashmir in coalition with Peoples Democratic Party (PDP). Later in
the year 2016, Mehbooba Mufti was crowned as the Chief Minister of Jammu and
In the year 2018, the alliance between the two parties broke. Therefore, as per
Article 92 of the Jammu and Kashmir Constitution, if the machinery of the state
is not running properly, then in that scenario, the governor's rule takes over.
Hence since June 2018, Governor's rule continued till December 2018. In December
2018, President's rule was imposed on Jammu and Kashmir.
Next in May 2019, BJP won the parliamentary elections and the election manifesto
of the BJP clearly states the scrapping of Article 35A and Article 370.
When the Instrument of Accession, 1947 was signed it was proposed that there
shall be a special provision for Jammu and Kashmir. In order to fulfil the above
requirement, Article 370 was drafted by the Constitution makers while drafting
the Indian Constitution. After the Constitution came into force, Article 370
provided a special status to Jammu and Kashmir. It states that all other laws
applicable to other parts of India shall not apply to Jammu and Kashmir.
The text of Article 370 mentions it to be a temporary provision. It also further
mentions the removal procedure of the Article which clearly states that the
President by issuing public order or public notification can state that Article
370 is no more applicable. But, the same can be done only by taking permission
from the Constituent Assembly of Jammu and Kashmir.
Why Article 370 Was Not Dissolved Till 2019?
The reason behind this is that the text of Article 370 mentions the President
taking permission from the Constituent Assembly of Jammu and Kashmir before
releasing the presidential order stating the dissolution of Article 370.
However, the Constituent Assembly was already dissolved in the year 1957 after
the framing of the Jammu and Kashmir Constitution. Due to this deadlock, the
removal of Article 370 was a problematic situation.
On 14th May 1954, a presidential order named 'The Constitutional Application to
Jammu and Kashmir's order 1954 was passed by Dr. Rajendra Prasad. Article 35 A
was included in the Constitution through this presidential order. Article 35A
says that all the laws which other states in India follow shall not be
applicable in Jammu and Kashmir. The President, in consultation with the state
assembly of Jammu and Kashmir, will decide which laws shall be applicable in
Jammu and Kashmir.
Section 35A also decides who can be a permanent resident of Jammu and Kashmir.
People considered to be residents of Jammu and Kashmir are given certain special
rights and privileges over non-permanent residents.
The text of the article states that:
- The People Who Are Subject To The State From 14th May 1954; Or
- The People Who Are Living There For 10 Years Or More; Or
- The People Who Have Lawfully Acquired Immovable Property There Shall Be
Considered Permanent Residents Of Jammu And Kashmir.
How Important Is It To Be A Permanent Resident In Jammu And Kashmir?
The Right to vote in J&K was only available to residents of Jammu and Kashmir.
Employment under the state government and acquisition of immovable property are
certain privileges that were available to residents of Jammu and Kashmir only.
Why Was There A Need To Abolish Articles 370, And 35A?
The provision was discriminatory to women. The constitution of Jammu and Kashmir
basically states that if any Kashmiri woman marries an outsider or a
non-Kashmiri, then she will not be able to use her property rights. The
provisions also acted as a speed breaker for the development in Jammu and
Kashmir because facilities like government jobs, higher education, and land were
available only to residents of Jammu and Kashmir. The non-residents were barred
from enjoying such facilities.
For Example- any qualified doctor, researcher, or teacher would avoid settling
in Jammu and Kashmir due to all these limitations.
Ayushman Bharat Yojana Scheme is a government initiative which provides free
medical treatment and consultation by doctors. However, doctors under the
Ayushman Bharat Yojana Scheme resist going to Jammu and Kashmir due to such
prevailing limitations. This means that such beneficial government schemes
remain untouched in Jammu and Kashmir.
Not only this, various revolutionary legislations such as the Right to
Information Act, of 2005, various fundamental rights, fundamental duties,
Directive Principles of State Policy etc. do also does not apply to Jammu and
Constitution (Application To Jammu And Kashmir) Order, 2019
Finally, on August 5, 2019, the 'Jammu and Kashmir (Reorganisation) Act, 2019',
and the 'Constitution (Application to Jammu and Kashmir) Order, 2019' were
passed by amending Article 367 of the Indian Constitution.
Presidential power enlisted under Article 370(1)(d) to amend Article 367, the
President of India( Ram Nath Kovind) made the Constituent Assembly of Jammu and
Kashmir is synonymous with the Legislative Assembly. This meant that the
constitutional requirement of taking recommendations from the constituent
assembly by the President to abolish Article 370 of the Indian Constitution is
And finally, the special status of Jammu and Kashmir which made it
a separate part from India no longer exists. Jammu and Kashmir becomes an
integral part of India, which means that only the Indian constitution is
applicable to the whole of India and there will be only one kind of citizenship
provided to all the citizens which is the citizenship of India.
Judiciary On Article 370
In the case of P.L. Lakhanpal Vs. State of Jammu and Kashmir and Union of India
(1955), the five-judge bench of the Supreme Court held that the presidential
order cannot itself amend article 1 and article 370. The facts of the case
resolves around the detention of the accused, to which the court made it very
clear that the preventive detention order in Jammu and Kashmir cannot be
challenged on grounds of violation of fundamental rights for a period of five
years from the directive.
In the case of Prem Nath Kaul v. State of Jammu and Kashmir,
the court held that
Article 370 is a temporary provision. The Court after deliberately discussing
the objective and the historical background behind Article 370 came to the
conclusion that the relationship between the State of Jammu and Kashmir and the
Union of India should be finally decided by the Constituent Assembly of the
Jammu and Kashmir.
The Jammu & Kashmir Preventive Detention Act, 1964 was originally given a
five-year timeline. However, its validity was extended for 15 years and then to
10 years by the Constitution (Application to Jammu & Kashmir) Second Amendment
Order, 1959 and 1964.
Similarly, in the case of Abdul Ghani Vs. State of J&K (1971)
a writ petition of
habeas corpus was filed before the Supreme Court to challenge the detention made
under the Preventive Detentions Act, 1964. It was argued that the said detention
is contrary to Part III of the Constitution and violative of their fundamental
rights. However, the Court denied relief to the petitioners even if the Act
purported was violative of their right enshrined under Article 21 of the
The Court in Sampat Prakash Vs. The state of Jammu and Kashmir
relief to the petitioner. The Court stated that Article 370 can only be removed
by the President on the recommendation of the Constituent Assembly of J&K as
stated under Article 370(3).
And since the Constituent Assembly of J&K was
dissolved in the year 1957, it showed that the Constituent Assembly of J&K had
no intention to ask for revocation of the Article. Moreover, the Court in this
case further held that in the light of the proviso to Article 368, the President
under Article 370 is required to exercise his powers from time to time in order
to bring into effect constitutional amendments in the State of Jammu and
Kashmir, under Article 368.
Therefore, by virtue of the aforesaid mechanism, it cannot be said that Article
Prior to the year 1965, the Sardar-i-Riyasat was elected head of
Jammu and Kashmir. The Constituent Assembly in the 1952 amendment added the term
to the explanation clause (1) of Article 370. The amendment substituted the
office of Maharaja Hari Singh to Sardar-i-Riyasat. However, the above said
amendment was made to Article 370 on basis of the recommendation made by the
In the case of Mohd. Maqbool Damnoo vs the State Of Jammu And Kashmir (1972)
the Supreme Court upheld the validity of Presidential Order 1965 which amended
article 367(4)(d) to state that "Sardar-i-Riyasat" used in Article 370 should be
read as "Governor". This means that the office of Sardar-i-Riyasat was replaced
by the office of the Governor appointed by the Union of India.
The case basically revolves around the constitutional validity of the Jammu and
Kashmir Preventive Detention (Amendment) Act, 1967. The petitioners contended
that the abovesaid statute is constitutionally invalid as the consent of
Sardar-i-Riyasat of Jammu and Kashmir was absent. It was contended by the
petitioners that this amounted to an amendment to Article 370 through the
backdoor, as the power
conferred by Article 370 could not be used to amend Article 370.
However, the Court upheld the Constitutional validity of the 1965 amendment
order by stating that the above said amendment is "clarificatory" in nature and
did not in any way modify Article 370. With respect to the replacement of the
term Governor with Sardar-i-Riyasat, the Court held that Governor acts as the
successor to the office of Sardar-i-Riyasat. Hence, the governor has the power
to give his assent to the Jammu and Kashmir Preventive Detention (Amendment)
In the case of State Bank of India v. Santosh Gupta
(2017), an appeal was filed
challenging the decision of the Jammu and Kashmir High Court, which stated that
the provisions of the SARFESI act are not applicable to Jammu and Kashmir since
the provisions of the act are in direct conflict with Section 140 of the
Transfer of Property Act of Jammu & Kashmir, 1920.
The Supreme Court while examining the applicability of the SARFESI act to Jammu
and Kashmir held that the abovesaid act has been passed by the parliament by
exercising its power enlisted under Entry 45 of the Union List. Also, through
the Presidential order of 1954, Central acts relating to the subject matter of
"banking" were extended to Jammu and Kashmir.
Further, the Supreme Court opined that SARFEASI Act has to be read with the
Constitutional of India and the Constitution of Jammu and Kashmir. The
Constitution of India is superior to the Constitution of Jammu and Kashmir.
Lastly, since the expression' ..except the State of Jammu and Kashmir is absent
in the provisions of the SARFESI Act, 2002, therefore it confirms that the
drafters had the intention to make the provisions of the legislation applicable
to the state of Jammu and Kashmir.
Judiciary On Constitution (Application To Jammu And Kashmir) Order, 2019
After the Presidential Order, 2019 several petitions were filed challenging its
constitutionality of the Presidential Order, 2019. The five Judge bench led by
Justice N.V. Ramana heard the matter on 1 October, to which the court ordered
not to add further petitions dealing with the
On November 9, 2020, the Union of India furnished an affidavit defending its
reasoning behind the nullification of Article 370 of the Indian Constitution.
The affidavit stated that the removal of Article 370 was necessary since its
presence leads to militancy and terrorism by creating a "separatist mindset
among the people". Article 370 prompted the people of Jammu and Kashmir in
availing the benefits that are commonly available to other citizens of India.
However, the Petitioners contended that the Judicial precedents dealing with the
same issue such as Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat
Prakash versus Jammu and Kashmir in 1970 were in direct conflict. The Supreme
Court of the five-judge bench in the former case held that Article 370 was
temporary in nature. However, in the latter case, the bench recognized Article
370 as a permanent provision.
The General Principle of Law states that in case of conflict between the
judgements of two benches of the same strength, it is usually referred to as a
The court heard arguments on 11,12 December 2019 and 21, 22 and 23 January 2020.
On 2 March 2020, the bench refused to accept the petitioners' contention and
said the five-judge bench was the appropriate one to hear the matter.