Author – Tanuja Goria , National Law Institute University (NLIU) Bhopal
Abstract
Ever since the formation of the Republic of India, Article 370 has stood as one of the most debated and sensitive elements of the Indian Constitution. It granted Jammu and Kashmir a distinct autonomous status, acknowledging the region’s specific political and historical context at the time of its accession to India in 1947. This provision represented a special federal arrangement, crafted to balance the region’s autonomy with its integration into India. The term “In Re Article 370” has come to denote the broad legal, constitutional, and political discussions surrounding this provision, particularly in light of its effective nullification by the Union Government in August 2019 and the pivotal Supreme Court ruling in 2023.
Historical Background
The origins of Article 370 are rooted in the events of 1947 when British India was divided into India and Pakistan. At that juncture, princely states had the discretion to join either nation or remain sovereign. Maharaja Hari Singh of Jammu and Kashmir initially chose to remain independent. However, following an incursion by tribal forces backed by Pakistan, he sought military aid from India and signed the Instrument of Accession on October 26, 1947. This accord confined India’s jurisdiction over Jammu and Kashmir to defense, foreign affairs, and communications.
Subsequently, India assured that a plebiscite would be conducted to ascertain the region’s political future—a promise complicated by evolving political and diplomatic realities. As a transitional arrangement, Article 370 was embedded into the Constitution to reflect Jammu and Kashmir’s special status. It allowed the state to draft its own Constitution and imposed significant limitations on Parliament’s authority over state matters.
Constitutional Structure of Article 370
Article 370 included three significant clauses. Clause (1) restricted Parliament’s power to only those areas listed in the Instrument of Accession, requiring the state government’s consent for extending additional central laws. Clause (2) stated that the state’s Constituent Assembly must approve any changes to Article 370. Clause (3) allowed the President to declare Article 370 inoperative, provided the Constituent Assembly of Jammu and Kashmir recommended such a move.
The Constituent Assembly of Jammu and Kashmir, which convened in 1951 and completed its work by 1957, never advised the abrogation of Article 370. With its dissolution, a legal ambiguity emerged—whether the provision could ever be repealed became uncertain. Over time, Article 370 became a channel for Presidential Orders that gradually extended parts of the Indian Constitution to Jammu and Kashmir, enhancing its integration without an outright repeal.
Legal Issues and Competing Arguments
The annulment of Article 370 sparked a significant constitutional debate, involving contrasting viewpoints on federalism, constitutional intent, and democratic accountability. Critics argued that the process was constitutionally flawed, asserting that the Article could only be revoked with the endorsement of the now-defunct Constituent Assembly. They emphasized that executing such a monumental change while the state was under President’s Rule denied the people democratic representation. Moreover, the transition of Jammu and Kashmir from a state to Union Territories without its legislature’s approval triggered concerns about the erosion of federal principles. Civil rights issues were also raised, highlighting mass detentions, internet blackouts, and increased military presence.
In response, the Union Government maintained that Article 370 was always meant to be provisional and that it had become an impediment to unity and growth. It argued that the President had the authority under Article 370(3) to render the provision ineffective, and the absence of the Constituent Assembly did not hinder this power. The Government contended that the Article fostered separatism and obstructed progress. Procedurally, it reasoned that under President’s Rule, Parliament could act on behalf of the state legislature, and the Governor’s approval sufficed for making constitutional amendments. The reorganization of Jammu and Kashmir into two Union Territories was justified under Article 3 of the Constitution as a necessary step for administrative and national security reasons.
The Supreme Court ultimately upheld the Union Government’s actions, stating that Article 370 was a temporary mechanism and lost its legal purpose after the Constituent Assembly’s dissolution. It affirmed the President’s authority to revoke the Article and recognized Parliament’s power to act as the state legislature during President’s Rule. Additionally, the Court validated the Jammu and Kashmir Reorganisation Act, declaring that Parliament’s jurisdiction to reorganize states was constitutionally grounded. This judgment reaffirmed the central government’s constitutional supremacy while reopening deeper debates on the distribution of power in a federal structure.
Political Ramifications and Debates
For many in Jammu and Kashmir, Article 370 served as a critical constitutional protection safeguarding their autonomy and cultural identity. Regional parties such as the National Conference and the Peoples Democratic Party regarded it as fundamental to the state’s relationship with India. On the other hand, national parties, particularly the Bharatiya Janata Party (BJP), long argued for its removal, perceiving it as a barrier to national unity.
Despite its dilution over time through multiple Presidential Orders, Article 370 remained symbolically and practically significant. It gave Jammu and Kashmir a separate Constitution, a distinct flag, and restricted land ownership to state residents. These provisions became central to larger debates about nationalism, constitutional principles, and the nature of Indian federalism.
The Abrogation in 2019
On August 5, 2019, the central government embarked on a twofold legal strategy to abrogate Article 370. First, a Presidential Order under Article 370(1) replaced the 1954 Order and extended the entire Indian Constitution to Jammu and Kashmir. Second, a declaration under Article 370(3) made the provision inoperative.
The legal innovation lay in redefining the term “Constituent Assembly” in Article 370(3). As the state was under President’s Rule, the government argued that Parliament assumed the role of the state legislature. The Governor, acting on behalf of the state administration, gave the necessary concurrence. This interpretation enabled the Union to bypass the requirement of the defunct Constituent Assembly and revoke the provision.
Simultaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the state into two Union Territories—Jammu and Kashmir (with an Assembly) and Ladakh (without one). This move marked a constitutional milestone.
Judicial Scrutiny and the 2023 Supreme Court Decision
The petitioners in this case asserted that the process was procedurally flawed, citing the absence of a valid recommendation from the Constituent Assembly and the lack of approval from the state legislature. They argued that the unilateral decision to alter Jammu and Kashmir’s status undermined the foundational principles of federalism enshrined in the Indian Constitution. According to their perspective, such a significant change should have involved broader consultation and consensus, particularly with the state’s representatives, rather than being imposed solely through parliamentary authority. They maintained that this approach disrupted the balance of power between the Union and the states, setting a concerning precedent for federal governance in India.
In its landmark judgment delivered in December 2023, the Supreme Court upheld the revocation. The Court emphasized that Article 370 was envisaged as a transitional and temporary arrangement, and its relevance ceased with the dissolution of the Jammu and Kashmir Constituent Assembly. It held that the President was empowered to declare the provision inoperative and that, during President’s Rule, Parliament could validly assume the role of the state legislature.
The Court further validated the constitutional legitimacy of the Jammu and Kashmir Reorganisation Act, highlighting Parliament’s authority under Article 3 to modify state boundaries and status. The ruling reflected an expansive interpretation of constitutional powers and reaffirmed the central government’s supremacy in matters of national integrity during exceptional circumstances.
Implications of the Ruling and Abrogation
This ruling signified a monumental shift in India’s constitutional landscape. It marked a movement away from the model of asymmetric federalism towards a more unified national legal order. Advocates of the judgment viewed it as a significant advancement toward nationwide legal uniformity, strengthened integration, and broader access to rights and development for all Indian citizens, including residents of Jammu and Kashmir.
Conversely, critics raised concerns about democratic principles being sidelined. They argued that implementing such a major constitutional transformation during President’s Rule, without consulting the people of the region, bypassed democratic norms and undermined cooperative federalism. The conversion of Jammu and Kashmir into Union Territories was perceived by many as a dilution of statehood and representative governance
Socio-Political and Legal Consequences
Legally, the judgment set a precedent for how constitutional provisions could be interpreted and exercised during periods of political exigency. It reinforced the broad constitutional powers of the President and Parliament in emergency governance scenarios. This development could influence future constitutional disputes regarding the division of powers between the Union and states.
Prolonged security operations, communication shutdowns, and detentions of regional leaders drew criticism both domestically and globally, particularly from human rights watchdogs. Nonetheless, the government emphasized its focus on development, promising better infrastructure, enhanced local governance, and long-term peace as justification.
This episode highlighted the tension between centralized constitutional authority and the political aspirations of individual regions. While the Court’s verdict confirmed the Union’s ability to determine national integration policy, it reignited discussions on how federalism in India should adapt to diverse historical and regional identities.
Conclusion
The debate surrounding “In Re Article 370” transcends a mere legal ruling—it represents a pivotal moment in India’s constitutional journey. The annulment of Article 370 and its judicial affirmation illustrate how legal interpretation, political will, and constitutional engineering can converge to reshape federal dynamics.
While the constitutional question may now be settled, the broader implications for governance and regional trust remain critical. The long-term success of this decision will depend on how well it is followed by inclusive politics, social development, and public engagement in Jammu and Kashmir. The narrative of Article 370 will continue to influence how India negotiates the balance between unity and diversity within its federal framework.
FAQ’s
1. What was the significance of the Supreme Court judgment on Article 370 in 2023?
The Supreme Court’s 2023 judgment upheld the abrogation of Article 370, which provided Jammu and Kashmir with special autonomy. The Court concluded that the provision was temporary and that the President had the authority to declare it inoperative. This decision validated the reorganization of Jammu and Kashmir into Union Territories and paved the way for the extension of Indian laws to the region.
2. What was the main legal issue discussed in the case regarding Article 370?
The central legal issue was whether the abrogation of Article 370 by the President and the subsequent reorganization of Jammu and Kashmir was constitutionally valid. The Court examined the powers of the President to declare Article 370 inoperative, the procedural aspects involved, and the interpretation of the term “Constituent Assembly” in Article 370(3) as “Legislative Assembly.”
3. What did the Court say about the temporary nature of Article 370?
The Supreme Court recognized that Article 370 was intended to be a temporary provision, as envisaged by the framers of the Constitution. It ruled that the provision could be altered or abrogated through the authority of the President, as long as the legislative process involved the concurrence of the state’s legislative assembly. This reinforced the view that the special status of Jammu and Kashmir was not permanent.
4. What impact does the ruling have on the statehood of Jammu and Kashmir?
The Supreme Court ruling allows for the reorganization of Jammu and Kashmir into Union Territories. However, the Court directed the Government to restore statehood to Jammu and Kashmir at the earliest, alongside conducting elections to the legislative assembly, which is expected by September 2024. This decision addresses the political future of the region while maintaining its new status as a Union Territory.
5. What were the arguments of the petitioners against the abrogation of Article 370?
The petitioners argued that the abrogation of Article 370 violated the constitutional framework, as it fundamentally altered the terms of Jammu and Kashmir’s accession to India. They contended that such a drastic change required the consent of the Constituent Assembly of Jammu and Kashmir, which ceased to exist in 1957, thus making the actions of the Indian government unconstitutional.
6. What were the arguments made by the Government in favor of the abrogation?
The Government of India argued that the provisions of Article 370 were meant to be temporary and that the revocation was necessary for the full integration of Jammu and Kashmir into India. It claimed that the special status of the region had been a barrier to the full application of Indian laws and development in the state. Moreover, the Government emphasized that the constitutional amendments were passed in accordance with the law and with the approval of the President.
