Simone Lawson
Article 370 of the Indian Constitution has been a source of controversy and legal debate, particularly regarding the special status granted to the state of Jammu and Kashmir. The article, inserted in 1949, provided Jammu and Kashmir with autonomy, allowing it to enact its own constitution and giving it powers to decide on matters beyond the scope of the Central Government. However, over time, the Central Government has sought to amend and dilute Article 370 through various means, including Presidential orders and legislative changes. The revocation of Jammu and Kashmir's special status in 2019 sparked widespread discussion and raised questions about the need for constitutional amendments to Article 370. This complex issue involves legal, political, and regional dynamics that have shaped the relationship between the Central Government and the state of Jammu and Kashmir.
| Characteristics | Values |
|---|---|
| Article Number | 370 |
| Type | Temporary provision |
| Purpose | Granting special powers to the state of Jammu and Kashmir |
| Powers Granted | Authorisation to enact its own constitution |
| Applicability | Only Articles 1 and 370 of the Indian Constitution applied to the state |
| Legislative Process | Union Parliament could make laws for the state in consultation with the state government on defence, foreign affairs, and communications |
| Amendments | Could only be amended or repealed by the President of India with the recommendation of the Constituent Assembly of the State |
| Central Government Powers | Limited to defence, foreign affairs, and communications |
| Other Constitutional Powers | Could be applied with the concurrence of the state government |
| Presidential Orders | 47 orders issued between 1956 and 1994 extending central government powers and constitutional articles to Jammu and Kashmir |
| Supreme Court Ruling | In 2018, the Supreme Court of India ruled that Article 370 had attained permanency |
| Revocation | Special status revoked by the Indian government on 5 August 2019 |
| International Response | Maldives recognised it as an internal matter, Poland encouraged bilateral solution between India and Pakistan |
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What You'll Learn
The revocation of Jammu and Kashmir's special status
Article 370 of the Indian Constitution was a 'temporary provision' that granted the state of Jammu and Kashmir a special autonomous status within the Indian union. It was inserted on 17 October 1949 and allowed Jammu and Kashmir to enact its own constitution, which came into force on 26 January 1957. This constitution included the declaration that "The State of Jammu and Kashmir is and shall be an integral part of the Union of India."
Article 370 embodied six special provisions for Jammu and Kashmir. It exempted the state from the complete applicability of the Constitution of India, conferred the power to have its own constitution, and limited central legislative powers over the state to the subjects of defence, foreign affairs, and communications. The article also provided for a constituent assembly in the state, without the consent of which no changes to the constitutional provision could be made.
Over time, there were attempts to erode the special status of Jammu and Kashmir. This process started in 1950 with the issuance of the Constitutional Application Order 1950, and a series of Presidential orders further extended the powers of the Central Government to the state. In April 2018, the Supreme Court of India ruled that Article 370 had attained permanency since the state constituent assembly had ceased to exist.
On 5 August 2019, the government of India revoked the special status granted under Article 370. This action was accompanied by the cutting off of communication lines in the Kashmir Valley and the deployment of additional security forces. Several Kashmiri politicians were also taken into custody. The revocation was justified by the Indian government as a means to enable people in the state to access government programmes and rights such as education and information.
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Article 370's temporary nature
Article 370 of the Indian Constitution was introduced as a "temporary provision" in 1949, granting special powers to the state of Jammu and Kashmir. It allowed the state to have its own constitution and limited the central legislative powers of the Indian government over the state to defence, foreign affairs, and communications. The article was intended to be temporary until the formulation and adoption of Jammu and Kashmir's constitution.
The temporary nature of Article 370 is highlighted by its inclusion in Part XXI of the Indian Constitution, titled "Temporary, Transitional and Special Provisions." The article empowered the Constituent Assembly of Jammu and Kashmir to determine the extent to which the Indian constitution would apply to the state and even provided for the assembly to abrogate Article 370 altogether.
However, the Constituent Assembly of Jammu and Kashmir dissolved itself without recommending the abrogation of Article 370, leading to a debate over whether the article had become a permanent feature of the Indian Constitution. Some argued that the article could not be "abrogated, repealed, or even amended" as it conferred power on the state's Constituent Assembly, which no longer existed.
In April 2018, the Supreme Court of India ruled that Article 370 had attained permanency due to the non-existence of the state's Constituent Assembly. This ruling was reaffirmed in the court's judgements in 2023.
Despite the legal debates and rulings, the Government of India revoked the special status granted under Article 370 in Jammu and Kashmir in August 2019, making all the provisions of the Indian Constitution applicable to the state. This action was accompanied by the deployment of additional security forces and the detention of several Kashmiri political leaders.
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Presidential orders and the ''erosion' of Article 370
Article 370 of the Indian Constitution was a 'temporary provision' that granted the state of Jammu and Kashmir a special autonomous status within the Indian union. It was inserted on 17 October 1949 and gave Jammu and Kashmir the power to have its own constitution, a separate state flag, and autonomy of internal administration. It also allowed the state to define permanent residents and provide them with special rights and privileges in matters such as residence, property, education, and government jobs.
The Presidential orders under Article 370 have been a subject of controversy and have been seen as contributing to the erosion of Article 370. The first Presidential Order related to Article 370 was issued in 1950 and came into force contemporaneously with the Constitution of India. This order specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of Accession, as required by Article 370. The 1952 Presidential Order amended Article 370, replacing the phrase "recognised by the President as the Maharaja of Jammu and Kashmir" with "recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat", thus abolishing the monarchy in Jammu and Kashmir.
The 1954 Presidential Order, issued after consultation with the state's Constituent Assembly, specified the articles of the Indian Constitution that applied to Jammu and Kashmir. This order also made the Fundamental Rights in the Indian Constitution applicable to Kashmir, with some exceptions, and added "preventive detention laws" that were exempted from human rights challenges for twenty-five years. After the 1954 order, forty-seven additional Presidential orders were issued between 1956 and 1994, making various other provisions of the Indian Constitution applicable to Jammu and Kashmir. These orders extended the powers of the Central Government and the Constitution of India to the state, further eroding the autonomy granted under Article 370.
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. This effectively revoked the special status granted to the state under Article 370. The revocation was accompanied by the cutting off of communication lines in the Kashmir Valley, the deployment of additional security forces, and the detention of several leading Kashmiri politicians. The Indian government justified these actions as necessary to preempt violence and to enable people in the state to access various government programmes.
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The legality of amendments to Article 370
Article 370 of the Constitution of India was a "temporary provision" that granted the state of Jammu and Kashmir a special autonomous status within the Indian union. It allowed the state of Jammu and Kashmir to enact its own constitution, which was formally adopted by a Constituent Assembly on November 17, 1956, and came into force on January 26, 1957.
However, the Indian government and its supporters argue that Article 370 is a temporary provision that can be amended or revoked by the President of India through a public notification, as long as it is done with the "concurrence of the Government of the State" of Jammu and Kashmir. This power of the President is derived from Article 370(3) and has been upheld by the Supreme Court of India in various rulings, including one in April 2018, which stated that Article 370 had attained permanency since the state constituent assembly had ceased to exist.
The process of amending or revoking Article 370 has been termed the "erosion" of the article and has been met with criticism and legal challenges. Some scholars have found the orders to be "constitutionally suspect", extra-constitutional, or unconstitutional. The use of the Governor's concurrence instead of the elected legislative assembly's concurrence in a Presidential Order has also been criticised as "straying dangerously close to the constitutional fraud line".
On August 5, 2019, the Indian government revoked the special status granted under Article 370 through a presidential order, stating that all the provisions of the Indian Constitution now applied to Jammu and Kashmir. This effectively abrogated the separate Constitution of Jammu and Kashmir, and a single constitution now applies to all Indian states. The legality of this revocation has been upheld by a five-judge bench of the Supreme Court of India, which stated that the President had the power to revoke the temporary provision.
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International reactions to Article 370
The revocation of Article 370's special status for Jammu and Kashmir in August 2019 attracted a range of international responses. Pakistan, which has a turbulent relationship with India, refused to acknowledge the supremacy of the Indian Constitution over Jammu and Kashmir. Pakistan's Foreign Minister called on the international community, particularly China and the United States, to take action, but India maintained that this was an internal policy matter. China's Foreign Ministry spokeswoman Hua Chunying called for negotiation, stating that India's unilateral amendment "continues to damage China’s territorial sovereignty". The Chinese State Councillor and Foreign Minister Wang Yi later placed the onus of ensuring peace and stability in the region on New Delhi. The United States offered to mediate on the "explosive" Kashmir issue, but ultimately conceded to India's wishes, bowing to Prime Minister Narendra Modi's stance that it was an internal issue.
The United Nations Security Council adopted a lukewarm attitude, neither calling for a formal meeting nor issuing a statement. Senator Bernie Sanders, a Democratic frontrunner for the 2020 US presidential election, criticised the Indian government's handling of the situation, demanding that the communication blockade in Kashmir be lifted. Amnesty International also criticised the revocation, stating that the people of Jammu and Kashmir have faced grave abuses of their rights, including arbitrary detention, unlawful killings, and suppression of freedom of expression. They called for an end to the use of unlawful measures and unjust barriers impeding the exercise of human rights in the region.
The Organisation of Islamic Cooperation (OIC) called for a reversal of all unilateral measures taken since August 2019, aimed at changing the internationally recognised disputed status of the territory. However, India's global diplomatic strategy has largely been successful, with its position that Jammu and Kashmir is an internal issue with no external repercussions gaining acceptance.
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Frequently asked questions
Article 370 of the Constitution of India is a "temporary provision" that grants the state of Jammu and Kashmir a special autonomous status within the Indian union.
Article 370 allows the state of Jammu and Kashmir to have its own constitution and limits the central government's legislative powers over the state to defence, foreign affairs, and communications.
Article 370 can be amended or repealed by the President of India through a public notification, provided that the recommendation of the state's Constituent Assembly is given before such a notification is issued.
Yes, Article 370 has been amended multiple times since its adoption. Significant amendments were made in the years immediately following the adoption of the Indian Constitution, and a Presidential Order in 1954 further extended the powers of the Central Government over the state.
Article 370 is important because it grants special status to the state of Jammu and Kashmir, which has been a disputed region between India, Pakistan, and China since 1947. It also allows the state to have its own constitution and makes special provisions for the residents of the state.
