Author: Adv. Rubby Kalpesh Rajput, Asmita College of Law
INTRODUCTION
Article 370 of the Indian constitution gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent and part of the larger region of Kashmir which has been the subject of a dispute between India, Pakistan and China since 1947. J and K was administered by India as a state from 17 November 1952 to 31 October 2019, and Article 370 conferred on it the power to have a separate constitution, a state flag, and autonomy of internal administration.
Article 370 was drafted in Part XXI of the Indian constitution titled “Temporary, Transitional and Special Provisions” It stated that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian constitution would apply to the state. The state assembly could also abrogate the Article 370 altogether, in which case all of Indian Constitution would have applied to the state.
After the state constituent assembly was convened, it recommended the provisions of the Indian constitution that should apply to the state, based on which 1954 Presidential Order was issued. Since the state constituent assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
On 5 August 2019, the Government of India issued a Presidential Order superseding the 1954 order, and making all the provisions of the Indian constitution applicable to Jammu and Kashmir. The order was based on the resolution passed in both houses of India’s parliament with two-thirds majority. A further order on 6 August made all the clauses of Article 370 except clause 1 to be inoperative.
In addition, the Jammu and Kashmir Reorganisation Act, 2019 was passed by the parliament, enacting the division of the state of Jammu and Kashmir into two union territories to be called Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The reorganisation took place on 31 October 2019.
A total of 23 petitions were presented to the Supreme Court of India, challenging the constitutionality of the abrogation of Article 370 of the Constitution, which constituted a five judge bench for the same. On 11 December 2023, a five judge constitution bench unanimously upheld the constitutionality of the abrogation of Article 370 of the Constitution.
Purpose
The state of Jammu and Kashmir’s original accession, like all other princely states, was on three matters: defence, foreign affairs and communications. All the princely states were invited to send representatives to India’s Constituent Assembly, which was formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states. Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and Mysore. Even though the States Department developed a model constitution for the states, on 19 May 1949, the rulers and chief ministers of all the states met in the presence of States Department and agreed that separate constitutions for the states were not necessary. They accepted the Constitution of India as their own constitution. The states that did elect constituent assemblies suggested a few amendments which were accepted. The position of all the states (or unions of states) thus became equivalent to that of regular Indian provinces. In particular, this meant that the subjects available for legislation by the central and state governments was uniform across India.
In the case of Jammu and Kashmir, the state’s politicians decided to form a separate constituent assembly for the state. The representatives to the Indian Constituent Assembly requested that only those provisions of the Indian Constitution should be applied to the state as corresponding to the original Instrument of Accession, and that the state’s constituent assembly would decide on the other matters. Government of India agreed to the demands shortly before the aforesaid 19 May meeting with the other states. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly. This was a “temporary provision” in that its applicability was intended to last until the formulation and adoption of the State’s constitution. However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus, the Article was considered to have become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir, the latest of which was in April 2018.
Presidential order of 2019
Main article: Indian revocation of Jammu and Kashmir’s special status
On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha (upper house of the Indian Parliament) that the President of India had issued The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) under Article 370, superseding the Constitution (Application to Jammu and Kashmir) Order, 1954. The order stated that all the provisions of the Indian Constitution applied to Jammu and Kashmir. Whereas the 1954 order specified that only some articles of the Indian constitution to apply to the state, the new order removed all such restrictions. This in effect meant that the separate Constitution of Jammu and Kashmir stood abrogated. The order was stated to have been issued with the “concurrence of the Government of State of Jammu and Kashmir” which apparently meant the Governor appointed by the Union government.
The Presidential Order 2019 also added clause (4) with four sub-clauses to Article 367 under “interpretations”. The phrase “Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers” shall be construed as the “Governor of Jammu and Kashmir”. The phrase “State government” shall include the Governor. In proviso to clause (3) of article 370 of the Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”. According to Jill Cottrell, some of the Presidential orders under Article 370 have been issued since 1954 in similar circumstances when the state was under President’s rule. The Union governments interpreted the “concurrence of the state government” under these circumstances to mean the Governor.
Immediately after placing the Presidential Order 2019 before the Rajya Sabha, Home Minister Amit Shah moved a resolution recommending that the president issue an order under article 370(3) rendering all clauses of Article 370 inoperative. After the resolution was adopted by both houses of the parliament, the president issued Constitutional Order 273 on 6 August 2019 replacing the extant text of Article 370 with the following text:
370. 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 notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.
Conclusion
Main article: Jammu and Kashmir Reorganisation Act, 2019
On 5 August 2019, the Home Minister Amit Shah introduced the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya Sabha to convert Jammu and Kashmir’s status of a state to two separate union territories, namely Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir was proposed to have a legislature under the bill whereas the union territory of Ladakh is proposed to not have one. By the end of the day, the bill was passed by Rajya Sabha with 125 votes in its favour and 61 against (67% in favour). The next day, the bill was passed by the Lok Sabha with 370 votes in its favour and 70 against it (84% in favour). The bill became an Act after it was signed by the president.
The two union territories came into existence on 31 October 2019, which was celebrated as National Unity Day. The president of India appointed a Lt. Governor for the Union Territory of Jammu and Kashmir and a Lt. Governor for the Union Territory of Ladakh. Both the Lt. Governors were sworn in by Justice Gita Mittal, the Chief Justice of Jammu and Kashmir High Court, on 31 October 2019, first at Leh for Ladakh UT and then at Srinagar for Jammu and Kashmir UT. President’s Rule under article 356 of the Constitution of India was ended in the state of Jammu and Kashmir on the night of 30 October 2019. President’s Rule is not applicable to and is not needed in a union territory as a union territory is controlled by the central government anyways. The President issued an order stating that he will rule the union territory of Jammu and Kashmir directly until the legislative assembly is constituted in the union territory.
Popular media
The Hindi film Article 370, which is set against the backdrop of the revocation of the special status represented by Article 370, featuring actress Yami Gautam in a lead role, was released on 23rd February 2024, garnering mixed reviews from both audiences and critics.
FAQS
Q1 When was Article 370 removed?
On 5 August 2019, the Government of India revoked the special status, or limited autonomy, granted under Article 370 of the Indian Constitution to Jammu and Kashmir.
Q2 What are the benefits of removing Article 370?
The benefits are wide-ranging, it will increase industrialization, thereby increasing employment opportunities to the youth of Jammu and Kashmir. The tourism industry will receive a major boost. It will lead to better access to health and education. The rights of women and children will be protected. It will benefit the Scheduled Castes and Scheduled Tribes living in Jammu and Kashmir. There will be more transparency and accountability in the administration.
Q3 What is Article 370 and 35 A?
Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to them. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India under Article 370. Under Article 370 of the Constitution of India, the President had the power of issuing orders for the application of provisions of the Constitution of India with modifications, exceptions, and amendments in the provisions.
Q4 Who drafted Article 370 for Jammu Kashmir?
Sir Narasimha Ayyangar Gopalaswami Ayyangar represented India at the United Nations Security Council and later drafted Article 370 of the Indian Constitution that granted autonomy to Jammu and Kashmir. He was a member of the Drafting Committee of the Constitution, was a leader of the Rajya Sabha and a cabinet minister in the Government of India, first as a minister without portfolio but looking after Kashmir Affairs, and later as the railway minister.
Reference: Wikipedia
