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.

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. 

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Article 370: Constitutional Obligation and Compulsion

Profile image of 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.

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The paper briefly analyses the integration of the state of Jammu and Kashmir with the Indian Union through the Instrument of Accession (1947) under the pretext of Article 370 of the Indian constitution. Article 370 provided a special position to the state of Jammu and Kashmir in the quasi-federal-oriented polity of India as envisaged in its constitutional set up. It explores legal nature and character of the Article 370 within the Indian Constitution, and also highlights the true nature and meaning of autonomy of Jammu and Kashmir within the Indian Union. The author tries to highlight how after seventy four years Indian govt. arbitrarily and unilaterally abrogated Article 370 without the consent of Jammu and Kashmir constituent Assembly/Elected Government. This paper also analyses social, economic and political implications of abrogation of Article 370. It further highlightsthe exploitative nature of Indian government which was once upon a time a defender of democratic values and means.

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Since the time of inception of Article 370 in the Constitution of India under Temporary and Transitional Provisions, its continuation is a big question for those who are against the said article for various reasons. Kashmir is and was always been a very sensitive issue for India. And the recent debate started by the State Minister Jitendra Singh wherein he stated that we are asking people for their opinion whether the article 370 should remain in force or should get abrogated, has again created a great political agitation in the Country once again. Article 370 was introduced to the Constitution of India after the State of J & K was acceded to India through an Instrument of Accession on 26 th October 1947 for the purpose of giving protection to the people of Kashmir as Raja Hari Singh asked for it from the Union Government when he found himself unable to deal with various abnormal conditions of the State prevailing at the time of Independence. There were frequent cease fire from Pakistan and various religious agitations going on at that time. Due to all this J & K had been given special status under Article 370. Now after 67 years of India's Independence the most important issue is that now the conditions are not same as it was during independence because of which Kashmir was given special status under Article 370 and the same was put under the temporary provisions. Also, Article 370 is in question as the it is beneficial only to the rulers of the State and for subjects it does not seems to be of much significance. The purpose of this paper is to study various implications of Article 370 and whether it should continue or not.

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From time to time, Kashmiri politicians have used Article 370 for unnecessarily stoking up hatred and anger against the Indian state. Mr Omar Abdullah has recently held out the threat of secession if article 370 is abrogated. The article argues that the special category status of Jammu & Kashmir carries much more significance for the state than the much diluted Article 370. Without the special category status, the State can’t survive.

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This paper revisits one of the significant provisions of Indian Constitution visa -vis Jammu and Kashmir-Article 370. In this article, an attempt has been made to draw upon the historical trajectories of the inclusion, dilution and finally revocation of the Article 370. It also study the issue related to this provision and its criticism in the political corridors of state. The paper focuses on its political significance then and now. It scrutinises the issue related to this provision and its criticism in the political corridors of Jammu and Kashmir (J&K). The paper further explores the political ramification on Jammu and Kashmir after the abrogation.

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Article 370 of the Indian Constitution stipulates autonomy for the state of Jammu and Kashmir (J&K). Terms of the Article have remained mired in controversy owing its unequal dispensation within the framework of free India. This paper examines Article 370 and the validity of politics attached to it, based on four specific arguments. First, the Genesis of Article 370 spawns inequality in India. Second, its Retention implies festering of contentious issues. Third, its Ramifications forge inequality within J&K. Fourth, how Politics over Article 370 only seek limited leverage from it. These arguments have been examined through an engagement with primary and secondary sources and views analyzed in different traditions. The case universe comprises views across a spectrum of opinion. An interpretivist approach classifies this debate in the larger context of Continuation or Revocation of Article 370, based on the research question whether Article 370 has worked in the manner envisaged, or has aggravated inequality and fuelled growth of conflict in J&K.

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