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Abrogation of article 370 and the question of asymmetrical federal arrangement in Northeast India

• Original Paper
• Published: 03 December 2022
• Volume 2 , article number  265 , ( 2022 )

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• Hm Izhar Alam   ORCID: orcid.org/0000-0003-0426-9608 1  

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India is the largest democracy with multi-religious, multi-cultural, multi-racial, and multi-lingual society. In a democratic society, asymmetrical federalism has evolved as an answer to the question of accommodating and managing diversity. The paper intends to explore how asymmetric federal institutions were implanted in the Constitution under articles 370, 371, and the sixth schedule. The central theme of this paper is the self-rule assertion in the Northeast to be placed under the concept of asymmetrical federal arrangement in relation to the recent abolition of article 370. It also analyses how differences in ethnicity and region were accommodated in nation-building through asymmetric federalism, traversing the challenges in crafting, and implementing. The abrupt abolition of article 370, ethnic conflict, and the aspirations for self-rule in the Northeast is debatable in the context of self-rule and shared-rule. The Indian government should have gone for a more conciliatory action. Moreover, it must be cautious and amiable in handling the fragile, existing conundrum of power-sharing federal arrangement and inclusivity in the Northeast and Jammu & Kashmir.

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As laid down in the Constitution of India 1950, article 246; Whilst the Union List contains subjects over which exclusive legislative authority resides in the Union government, the Concurrent List contains subjects over which both Union and States have authority to legislate.

As in the Constitution of India 1950, article 1: 1) India, that is Bharat, shall be a Union of States; (2) The States shall mean the states for the time being specified in Parts I, II, and III of the First Schedule; (3) The territory of India shall comprise (a) the territories of the States; (b) the territories for the time being specified in Part IV of the First Schedule; and (c) such other territories as may be acquired.

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Acknowledgements

I gratefully acknowledge the suggestions of Professor Arshi Khan, Department of Political Science, Aligarh Muslim University, India and also expressed my thankfulness to the editor and anonymous reviewer of SN Social Sciences for their constructive comments on an earlier draft of this article. Therefore, for this research compliance with ethical standards is not applicable.

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Alam, H.I. Abrogation of article 370 and the question of asymmetrical federal arrangement in Northeast India. SN Soc Sci 2 , 265 (2022). https://doi.org/10.1007/s43545-022-00581-8

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United States Institute of Peace

Home ▶ Publications

India’s Kashmir Conundrum: Before and After the Abrogation of Article 370

By: Sameer P. Lalwani, Ph.D. ; Gillian Gayner

Publication Type: Special Report

On August 5, 2019, the government of India revoked the constitutional autonomy of its Muslim-majority state of Jammu and Kashmir. This report—based on field interviews, new data collection, and extensive research— focuses on the revitalized insurgency and mass uprising between 2013 and 2019, explains how the Kashmir conflict evolved to a point that contributed to India’s extraordinary political gambit, and lays out both New Delhi’s strategy and the challenges the government faces going forward.

• Since 2013, mass resistance and armed insurgency have returned and grown in India’s Kashmir Valley, partly in response to the government’s failed strategy.
• Resistance has involved mass participation in “quasi-violence” that involves semi-organized pressure by unarmed civilians to provoke, frustrate, and impose costs on the state.
• New data on quasi-violence in the Kashmir Valley reveal substantial growth since 2013, at times even outpacing armed insurgency.
• New Delhi’s strategy fixated on kinetically degrading militant organizations to improve security, which fed local militant recruitment and depressed faith in democratic institutions.
• The government’s dramatic revocation of autonomy provisions for Jammu and Kashmir in 2019 minimized international penalties and preempted significant violent responses. Whether it replicates past political engineering or pursues revolutionary demographic engineering, the state is likely to face a resurgence of violent and quasi-violent resistance.
• U.S. influence is limited, but U.S. policymakers could encourage dialogue with all stakeholders and alert New Delhi to the challenges that Indian choices will pose for cooperation if it is indefinitely bogged down in Kashmir.

About the Report

This report focuses on India’s Muslim-majority state of Jammu and Kashmir in the wake of its revoked autonomy in early August 2019, how the evolving nature of the Kashmir conflict contributed to such a political gambit, and where the situation is headed. Supported by the Asia Center at the United States Institute of Peace, this report is based on extensive research, new data collection, and field interviews in the Kashmir Valley between 2012 and 2017.

About the Authors

Sameer P. Lalwani is a senior fellow and director of the South Asia Program at the Stimson Center, where he researches nuclear deterrence, interstate rivalry, crisis behavior, and counter/insurgency. Gillian Gayner was previously a research associate at the Stimson Center.

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Repeal of Article 370: Implications for India, Pakistan, and the United States

By Kyra Kocis, Nidhi Upadhyaya, Irfan Nooruddin

The already turbulent bilateral relationship between India and Pakistan is deteriorating rapidly in response to India’s decision to revoke the special status of the Kashmir region. A presidential order issued by India on August 5 abolished Articles 370 and 35A of the Indian constitution, and was shortly followed by the passage of the Jammu & Kashmir Reorganization Bill by the Lok Sabha (lower house of Parliament). Indian military troops quickly moved into the region, cellular networks were restricted, and high level government officials were placed under house arrest. In response, Pakistan has called on the international community, namely China and the United States, to take action, while India maintains that this is a matter of internal policy.

The briefing memo is a summary of recent events in Kashmir and discusses implications for the United States strategy in the region.

Primer: Jammu & Kashmir Reorganization Bill, 2019

On Monday, August 5, 2019, the President of India, Ram Nath Kovind, issued a presidential order, which revoked Articles 370 and 35A of the Indian constitution. The articles have institutionalized a unique constitutional relationship between Jammu & Kashmir (J&K) and the Central Government since 1954. Article 35A authorized the J&K legislature to determine residency requirements and restrict property rights. Originally written as a temporary measure, Article 370 restricted the Union government’s ability to legislate in J&K without the consent of the state’s Constituent Assembly and prevented the Indian Parliament from altering the borders of the state. Supporters of the action including Indian Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP) argue that Article 370 undermined national unity, was driven by a desire to appease minority sentiments, and hindered economic development in the region. Its revocation has long been a part of the party’s platform. Shortly after, the Jammu & Kashmir Reorganization Bill was passed by India’s Rajya Sabha (upper house) on August 5, bifurcating J&K into separate union territories. In response, Pakistan’s Prime Minister, Imran Khan, downgraded diplomatic relations with India, recalled Pakistan’s top diplomat from New Delhi, expelled India’s High Commissioner from Pakistan, and suspended bilateral trade. Following a meeting of Pakistan’s National Security Committee on August 7, the prime minister’s office stated they would raise the issue to the United Nations (UN) and the UN Security Council (UNSC). This came just two weeks after the Pakistani prime minister visited the United States to meet with US President Donald J. Trump and described the relationship with India as “ turbulent ,” largely due to the issue of Kashmir.

Domestic Response in India

Reactions within India have largely favored the president’s order. The Lok Sabha (lower house) passed a resolution supporting the presidential order in addition to the Jammu and Kashmir Reorganization Bill by solid margins. Indian National Congress (INC) chief whip in the Rajya Sabha,  Bhubaneshwar Kalita resigned  in protest of his party’s opposition to the J&K decisions. While many congressional ministers of parliament (MPs) have been vocal in opposition to the actions, Kalita’s resignation suggest that there is a lack of consensus within the party.

Reactions to the bill within J&K are largely unknown. For over two weeks now  the region has been placed under a nearly total communications blackout, raising concerns regarding press freedom and the accuracy of reporting emanating from the Valley . Prominent Kashmiri politicians including two former chief ministers, Omar Abdullah and Mehbooba Mufti, have been  placed under house arrest . Abdullah issued a statement, claiming “ GOI [the government of India] has resorted to deceit and stealth in recent weeks to lay the ground for these disastrous decisions…The announcement was announced after the entire State, particularly the Kashmir Valley, was turned into a garrison .” Restricted internet access has also made it nearly impossible to gauge the reactions of Kashmir’s seven million citizens. Jamyang Tsering Namgyal, a BJP MP from Ladakh, issued a statement saying, “ people in Ladakh wanted that the region be freed from the dominance [and] discrimination of Kashmir ,” suggesting that prevailing sentiments may differ between Jammu, Kashmir, and Ladakh.

International Response

Pakistan:  Following the events of August 5, Pakistan’s Foreign Ministry issued a statement saying, “as party to this international dispute, Pakistan will exercise all possible options to counter the illegal steps.” Prime Minister Imran Khan stated, “ if India attacks us, we will respond…we will fight until the last drop of blood .” He called on the Malaysian and Turkish prime ministers, as well as the Crown Princes of Saudi Arabia and the UAE, to recognize the act as violations of UNSC resolutions, and warned that it would pose “ serious implications for regional peace and security .” Pakistan’s foreign minister, Shah Mehmood Qureshi, addressed an emergency meeting of the Organization of Islamic Cooperation (OIC), as well as meeting with the Chinese leadership in Beijing. Qureshi also spoke with UN High Commissioner for Human Rights Michelle Bachelet and “ highlighted that the recent Indian measures are in breach of international human rights and humanitarian law .” In a press conference on Saturday, Qureshi stated, “ the Pakistan government has decided to take this issue to the UN Security Council. We will be needing China’s help there…China has assured full support to Pakistan .” In addition to seeking immediate international support and action by the UNSC, the issue is likely to be a focal point for Pakistan at the upcoming UN General Assembly convening.

China:  On Friday, August 16, China, a permanent member of the UNSC, called a private meeting to discuss Kashmir, the first time the international body has done so in nearly half a century. Following the meeting, Pakistani Ambassador to the UN, Maleeha Lodhi, argued that, “t he fact that this meeting took place, is testimony to the fact that this is an international dispute .” Indian ambassador to the UN, Syed Akbaruddin, reaffirmed the view that this is an internal matter for India. The UNSC did not issue any statement on the issue. Chinese interest in the region centers around Ladakh, where India claims parts of Chinese administered Aksai Chin. Under the  1963 Sino-Pakistan Agreement —which is not recognized as legal by India—Pakistan recognized Chinese sovereignty over portions of Northern Kashmir and Ladakh. Chinese Foreign Ministry spokeswoman Hua Chunying called for negotiation on the recent actions, and stated that “ India’s unilateral amendment to its domestic law, continues to damage China’s territorial sovereignty .” The Indian Ministry of External Affairs spokesperson responded that the proposed formation of a “Union Territory of Ladakh” is an “internal matter concerning the territory of India,” to which other countries should refrain from comment.

Implications for the United States

The BJP’s political mandate was renewed and expanded during the recent general elections, which likely emboldened the current government to take action regarding J&K. However, the United States may have inadvertently sowed the seeds for the timing of this incident. During Khan’s recent visit to the United States, President Trump claimed that Prime Minister Narendra Modi asked for assistance in mediating tensions in Kashmir. While Khan welcomed the mediation, Indian External Affairs Minister Subrahmanyam Jaishankar responded that “ no such request ,” had been made, and reiterated that “ it has been India’s consistent position that all outstanding issues with Pakistan are discussed only bilaterally .” In light of the revocation of Articles 370 and 35A, BJP MP Subramanian Swamy said there is  now nothing for Trump to mediate in the Kashmir issue, except for him to tell Khan to return the land taken illegally from India . Swamy then tweeted that the government now, “must withdraw the Petition filed by [former Indian Prime Minister Jawaharlal] Nehru in the UNSC seeking UN intervention in Kashmir,” and called for the reclamation of Pakistan Occupied Kashmir. One week after India’s decisions, Pakistani Ambassador to the United States Asad Majeed Khan vehemently called on the United States to help lower tensions. He said, “ the time is now for the United States to make good on Trump’s offer of mediation–– not for Pakistan’s sake or for India’s sake, but for the sake of the only people who have not been heard since India gagged them a week ago: the people of Kashmir themselves .”

As a strategic partner to both India and Pakistan, the United States plays a crucial role in regional security and stability. The Kashmir crisis, however, has largely been a bilateral pain point. As a partner, the United States is expected to support both India and Pakistan in counter-terrorism efforts, but it is their responsibility to sit down and discuss the implications of recent events on regional stability.

This briefing is a product of the Atlantic Council’s South Asia Center, and was prepared by Kyra Kocis, an intern with the Center, with input from Nidhi Upadhyaya, Associate Director, and Irfan Nooruddin, Director. August 2019.

Home > Analysis > Understanding the Abrogation of Article 370: Origin and Impact

Understanding the Abrogation of Article 370: Origin and Impact

R. Sai Spandana | 29th Jul 2023

The Supreme Court will decide the extent of the Union’s powers to make laws for Jammu and Kashmir and abrogate Article 370.

After almost four years of repose, the Supreme Court is set to hear the challenge to the abrogation of Article 370 next week. The Court’s decision will have practical ramifications on the extent of Jammu and Kashmir’s autonomy and the Union’s powers to alter it. 

Art. 370 granted ‘temporary’ special status to Jammu and Kashmir. From August 2, 2023, five senior most judges of the top Court— Chief Justice D.Y. Chandrachud , S.K. Kaul , Sanjiv Khanna , B.R. Gavai and Surya Kant will hear a batch of petitions challenging the Union’s 2019 Orders which effectively abrogated this special status given to the State. 

The Origins of Jammu and Kashmir’s Unique Status

In 1947, following the India-Pakistan partition, Jammu and Kashmir, a princely state—with a Muslim majority and a Hindu ruler—that shared a long border with the two countries, witnessed high tensions with both India and Pakistan coveting it. The erstwhile ruler of the State of Jammu and Kashmir, Maharaja Hari Singh was in a dilemma . He neither wanted to join the newly democratic India nor was he inclined to side with the Muslim-majoritarian Pakistan. He wanted Kashmir to remain an independent State. 

On October 24, 1947, Singh appealed to India for military protection against threats and attacks from Pakistan. In return, he would cede Jammu and Kashmir to India. The result was the signing of the ‘ Instrument of Accession ’ (IoA) by which Singh, on October 27th, 1947, acceded Jammu and Kashmir to India. However, terms and conditions applied. India would not be given complete control over the State.

As per this instrument, India’s Parliament could enact laws only on three subject matters—defence, external affairs and communications. Everything else was left to the State of Jammu and Kashmir. Further, the State was not bound by the Constitution of India (which was being drafted at that time). The IoA also stated that it could not be amended by the Indian government unless a supplement to the IoA allowed it.

Contents of Article. 370

The constituent assembly introduced Article 370 (Draft Art. 306A) to give effect to the IoA. This Article is titled ‘Temporary provisions concerning the State of Jammu and Kashmir’ . Its purpose was to enable Jammu and Kashmir to transition from an independent princely state to a democratic State of India. 

In essence, this Article did three things: 

• It limited the power of the Indian Parliament to make laws for Jammu and Kashmir to the three subjects mentioned in the IoA—defence, external affairs and communications.
• It stated that except for Article 1 , the Constitution of India did not apply to Jammu and Kashmir. Article 1 states that India is a Union of States. 
• It stated that this Article could only be amended by the President with the consent of the Constituent Assembly of Jammu and Kashmir. Even though Jammu and Kashmir’s Constituent Assembly would cease to exist once the State’s Constitution came into being, the power to amend Article 370 was given only to the Constituent Assembly and not to its legislative assembly. Therefore, arguably , this Constituent Assembly was meant to decide the fate of Article 370 once and for all. 

The Establishment and Dissolution of Jammu and Kashmir’s Constituent Assembly

On October 31, 1951, Jammu and Kashmir’s Constituent Assembly was established . In 1956, this Assembly created the Constitution for Jammu and Kashmir which declared that ‘Jammu and Kashmir is and shall be an integral part of the Union of India’. 

This Assembly abolished the Maharaja system and established an Officer named ‘ Sadar-i-Riyasat’ as Head of the State. It said nothing about the abrogation or modification of Article 370. 

After drafting the State’s Constitution, the Constituent Assembly was permanently dissolved on January 26, 1957. In theory, this meant that the President of India could no longer modify or repeal Article 370 unless a new Constituent Assembly was created. How then did the Union government abrogate this Article in 2019?

The Abrogation Process

The election manifesto of the ruling Bharatiya Janata Party (BJP) for the 2009 , 2014 and 2019 General Elections affirmed its intention to abrogate Article 370. After winning the election, the BJP government dissolved Article 370 with two Presidential Orders— CO 272 and CO 273 on August 5 and August 6, 2019, respectively. 

The first Order issued on August 5, 2019, amended Article 367 which dealt with the interpretation of the Constitution. The Order stated that the phrase ‘Constituent Assembly’ under Article 370 shall be read as ‘Legislative Assembly’ of the State. 

At the time, Jammu and Kashmir was under President’s Rule, by which its Legislative Assembly and Governor were replaced with the Union Parliament and the President. Therefore, the ‘Legislative Assembly’ of the State was the Union Parliament. In other words, the President could modify or abrogate Article 370 at the request of the BJP-led Parliament. 

Immediately after this Order, a Statutory Resolution was passed by both Houses of Parliament recommending that Article 370 be dissolved. 

The next day, on August 6, 2023, the President issued the second Order which held that Article 370 ceased to operate and that Jammu and Kashmir was a part of the Union of India. 

Reorganisation of the State

Following the abrogation of Article 370, on August 9, 2019, Parliament passed the Jammu and Kashmir Reorganisation Act , 2019. This Act bifurcated the State into two Union Territories —Jammu and Kashmir and Ladakh. The former had a legislative Assembly and the latter did not. 

Practical Implications: No More Special Status

The abrogation removes the special status granted to Jammu and Kashmir by the Constitution. This means that the Indian Parliament’s power to make laws for the newly formed Union Territories is no longer restricted to three subjects. The Constitution and other territorial laws of India apply to these two territories as they would to any other State and Union Territory in the Country. The Constitution of Jammu and Kashmir is redundant and the region no longer has a separate flag. 

Further, the exclusive benefits granted to ‘ permanent citizens ’ of Jammu and Kashmir to own and acquire property within the region stands dissolved.

Reactions and Responses

The constitutional status of an area plagued with decades of unrest changed overnight. 

Former Jammu and Kashmir Chief Minister Mehbooba Mufti said that the decision to abrogate Article 370 was a ‘ sinister one’ taken to alter the demographics of a Muslim-majoritarian State. She said the abrogation removed the autonomy granted to the State in 1947.

Senior Congress Party member P. Chidambaram criticised the move stating that a State had never been reduced to a Union Territory before. Earlier in 2023, Congress leader Jairam Ramesh said his party is demanding the restoration of Jammu and Kashmir’s statehood. 

Internationally, Pakistan and China opposed the abrogation stating India had breached their territorial sovereignty. The BJP government maintained that this issue concerned only India and no international borders were breached. 

The Challenge at the Supreme Court

Immediately after the abrogation, several individuals and organisations around the Country moved the Supreme Court challenging its constitutionality. Their arguments are two-fold. 

First, the abrogation breached the constitutional special status granted to Jammu and Kashmir. By modifying the meaning of ‘constituent assembly’ to abrogate the Article, the Union indirectly did what it directly could not. 

Second, they argue that the reorganisation of the State is a violation of Article 3 of the Constitution. Article 3 of the Constitution does not give the Parliament powers to downgrade federal democratic States into a less representative form such as a Union Territory.

Initially a 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench in . From October 1, 2019, Justice N.V. Ramana’s 5-Judge Bench heard arguments that the case must be referred to a larger bench. Ultimately, the Bench refused the plea for reference. This was in March 2020. The case saw no further movement till 2023. 

On July 11, 2023, the Supreme Court scheduled to hear the batch of petitions challenging the abrogation on August 2nd, 2023.

Why Does this Matter?

The implications of the top Court’s decision in the case will be complex. The Court will decide if the Union’s abrogation of Article 370 and the way it was effectuated (by altering Article 367 of the Constitution through a Presidential Order) is valid. 

By this, the Court will clarify the extent of powers of the President and Parliament to make laws for Jammu and Kashmir and also state what the proper way to do so is. The Court’s decision will influence the nature of Union-State relations, the contours of Article 3, and the limits of federalism. 

If the abrogation is found to be unconstitutional, will the Supreme Court reverse the reorganisation of the State?  Can it reinstate Jammu and Kashmir’s constitutionally granted special status? In any case, the Court will have to consider the ground impact of the four years that it has taken for the top Court to hear the case. The Court’s decision will have far-reaching implications on all political, legal and regional developments that have occurred in the State these few years. It will also have a ripple effect on the geo-political relations in the subcontinent. 

Related articles

Article 370 of the Constitution: A Timeline

SCO tracks the evolution of Article 370 from 1947.

Supreme Court to Hear Challenges to the Abrogation of Article 370 after 4-year Delay

As the Supreme Court answers large constitutional questions, the will of the people of Jammu and Kashmir hangs in the balance.

Gauri Kashyap

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Article 370 research paper

Article 370, An Advantage or a Disadvantage Indian constitution is one of the most efficient written constitution that any country has ever produced. It is a mixture of various other constitution’s, the constitution maker’s had to be very prudent while making the draft of the constitution because of the diversity India contains inside. Every state in India is unique and has its own diversity but the most beautiful and the most diverse and focus attracting state is in the northern end of the country India. Article 370 talks about the special status that has been given to the state of Jammu & Kashmir. This purpose of this paper is intended towards exploring a lot of puzzling questions, starting from the history & Kashmir, towards what was the need to incorporate this article what circumstances led to the introduction of this article, why this article has been a controversial subject, also this paper would and ending with the conclusion which will tell us that the existence of article 370 should be supported or not, in all article 370 would be dealt in in every important aspect.

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SMART M O V E S J O U R N A L IJELLH

Abstract Article 370 of the Indian Constitution deals with the special status given to the State of Jammu and Kashmir. Under this Article State of Jammu and Kashmir enjoys considerable autonomy which empowers it to have its own Constitution unlike other States of the Indian Union. The whole controversy of insertion of Article 370 started at the time of independence. Being a Muslim majority State with a Hindu ruler, Raja Hari Singh, the State was a bone of contention between India and Pakistan. India upholding the ideals of secularism demanded that the State be a part of it while Pakistan, being a Muslim State, staked claim at it. In the British approved partition plan, there was no provision which stated that the Hindu Princely State must accede to India and the Muslim States to Pakistan. Termed as the „umbilical cord‟ of the Indian Constitution as it is the only link between India and Jammu and Kashmir, Article 370 is perhaps the most sensitive provision of the Constitution. The Parliament has the power to amend the Constitution to change this provision. However, this Constitutional Amendment shall be subject to a judicial review and shall be required to confirm to the theory of basic structure of the Constitution1 as it would affect the relationship between the State and the Centre.

Jai Shankar Agarwala

This article traces the history behind this article.

Tarunjyoti Tewari

Dhanush Sharma

Samir Ahmad A Bhat

Kashmir has been a major bone of contention between India and Pakistan. But there has been very little understanding about its exact nature and contours that constitute it. In the absence of this understanding there will be no success in finding the strategies of resolving it. Kashmir is a multi-dimensional problem. It is not only a territorial dispute between India and Pakistan, but more than that it has been a problem of and for the people of Kashmir who have borne the brunt of t his dispute e ver si nce 1947. The ref ore , it is imperative to address the issue to redress the sufferings of the masses caused by the continuation of the dispute at its different levels.

Prof. (Dr.) Kavita Suri

medalloffice tenali

South Asia Multidisciplinary Academic Journal (SAMAJ)

Jean-Philippe Dequen

This paper seeks to briefly assess the place of Jammu and Kashmir within the Indian Union, as well as the latter’s repercussions on the daily administration of justice in Srinagar. Although regional States have retained certain specificities and prerogatives under the Constitution of India, J&K’s status is significantly different. Being the only State with its own constitution, J&K’s accession to India has been achieved through specific legal instruments granting it a peculiar type of sovereignty. In order to define the relationship between India and J&K, this article compares similar legal frameworks from a comparative perspective. It submits that J&K belongs to a sui generis legal category, similar to the one New Caledonia currently enjoys within the French Republic. It then seeks to explore how this peculiar status interacts with the administration of justice at the grass-root level in Srinagar. It suggests that the overall acceptance of the judicial system in J&K, as well as its growing integration into the Indian legal framework is closely linked to concerns about efficiency, and most importantly to the permanent residency status of its judicial officers.

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