Article 370 – Legal Dimensions

Article 370 – Legal Dimensions

          India has always been diverse in its culture and religion ever since its existence. During the time of the independence and partition between India and Pakistan, apart from the concerns regarding the reintegration and accession of princely states, accession of Jammu & Kashmir was a major issue. Because of its political instability and since it was a war zone between the newly partitioned countries- India and Pakistan, it was essential to give it a special status, which was different from other states and territory. J&K requires to be functioned differently and specially. Article 370 talks about the special status given to J&K. Article 370 of the Indian Constitution had embodied special provisions for the State of J&K. A constitutional aspect was provided which was called autonomy and Article 370 provided temporary provisions for special status.


          During the time of reorganization of States during the post independence period, provision of Article 238 which was omitted from the Constitution of India in the year 1956, shall not be applied to the State of J&K. J&K has had its political indifference from time immemorial. Sheikh Abdullah was politically influential at that time but wasn’t in power. Maharaja Hari Singh was in power, being a Hindu leader of a Muslim dominated state. With constant pressure from both India and Pakistan to join them, Maharaja Hari Singh wished for independent nation. But due to the uncalled war by Pakistan, Hari Singh extended for help to Jawaharlal Nehru (the then Prime Minister) and later accepted for the accession. Due t its history and present situation is was decided to grant a temporary special status to the state of J&K and when the situation comes under control, the people would decide whether they wanted to be a part of India, or Pakistan. This was done to keep the lamp of democracy glowing.

          Article 370 was then added to Part XXI of the Constitution of India under transitional and temporary provisions. All laws passed by the Central government/ Parliament, except for Defense, Foreign Affairs and Communication, the laws had to be passed or accepted by the State government of J&K as well, for it to be applicable in the state. There was debate regarding a different flag as well.

What was Article 370?

          Certain privileges were given to the State of J&K. Dual Citizenship was granted to the citizens of J&K, and there was a different national Flag as well. Owning a property and rights attached to were also different. The tenure of a functioning legislature for the whole of India is 5 years, but for the State of J&K, it is 6 years. Orders and laws passed by the Central government are not applicable and binding on J&K, until and unless the State government passes the same. Marriage laws also differ- if a woman marries a man who isn’t a resident of J&K, then after such marriage she loses the dual citizenship as well. No outsiders are permitted to buy land in the state of J&K and agencies like CBI do not function there as well. RTI and RTE are also not applicable. Reservation rules regarding minorities is also not applicable in the State.

Even when Article 370 was implemented in the State of J&K there were 2 articles of the Constitution which were applicable to J&K which was Presidential Order. The Constitution of India works in a federal structure. All the subjects of the legislation are divided into Union List, State List and Concurrent List. But, talking in reference to the State of J&K- the matters of the Union List and Concurrent List were initially limited to the terms of Accession signed. This was later in concurrence with the State government. State has most of the decision making power including the residual powers.

Why was it abrogated?

               On 5th August, 2019, President of India had issued a Constitution order. The order stated that “concurrence of the Government of State of Jammu and Kashmir, all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir.” The government could not completely rely on Article 370(3) to abrogate the Article. It used it powers under Article 370(1) to amend Article 367. The interpretation clause of the Constitution- “Government of the State of Jammu and Kashmir” in article 370 would be construed as the governor of Jammu and Kashmir (S.2), and the expression “Constituent Assembly of the State” in article 370(3) will be read as referring to the current legislative assembly of Kashmir. The order also stipulates that it will “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954,” effectively abrogating article 35A as well.

               Upper House of Parliament (Rajya Sabha) passed a Statutory Resolution recommending that the president of India abrogate most of article 370 pursuant to article 370(3). The next day, on August 6, the president implemented the resolution and revoked Jammu and Kashmir’s special status through Presidential Order C.O. 273, which stated that, as of August 6, 2019, “all clauses of the said article 370 shall cease to be operative,” and that “all provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir.”

               During the same period, the Parliament of India also passed the Jammu and Kashmir Reorganization Act, 2019. It passed the upper house on August 5 and the lower house the next day and received presidential assent on August 9, 2019. The revocation of article 370 faces a number of legal challenges, according to lawyers and legal experts. First, there is doubt as to whether the concurrence of the government of the state of Jammu and Kashmir has been received. For the past year, the state has been under direct presidential rule under article 356 of the Constitution after the BJP withdrew from an alliance with a regional party and the governor of the state dissolved the state assembly.


Article 370 has been in debate ever since it has been abrogated. People have different opinions regarding its applicability. Few think that it is making the locals less accountable and prone to more violence and disturbance which they are facing ever since the independence. Riots and war zone is what they have been experiencing. J&K has been under political pressure and faces changes accordingly. But some of them also feel that this decision will actually help include the State of J&K in totality and not make them vulnerable because the Central will take its responsibility and protect it, like it does for other States.  The question is that will this really end the tension and result into peace or not.

Article by: Mukti Heliwal, 3rd Year Law Student, New Law College, Bharati Vidhyapeeth University.

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