Omar Bennett
Article 370 of the Indian Constitution was a 'temporary provision' that granted special status to the state of Jammu and Kashmir, located in the northern part of the Indian subcontinent. The region has been the subject of a dispute between India, Pakistan and China since 1947. Article 370 was incorporated into the Indian Constitution in 1949, and it gave Jammu and Kashmir the power to have its own constitution, a separate flag, and autonomy over internal administration. However, in 2019, the Indian government revoked Article 370, sparking controversy and leading to various legal challenges and political repercussions.
| Characteristics | Values |
|---|---|
| Status | Special status, temporary provision |
| Powers | Separate constitution, state flag, internal administration |
| Applicability | Only Articles 1 and 370 applied to Jammu and Kashmir |
| Extending coverage of central law | Requires "consultation" for subjects in the Instrument of Accession |
| Extending coverage of other laws | Requires "concurrence" of the state government |
| Article 35A | Authorised state legislature to define permanent residents |
| Permanent resident entitlements | Property rights, employment, scholarships, social benefits |
| Presidential Order | Superseded 1954 order on 5 August 2019 |
| Supreme Court ruling | Removal of special status in 2019 was constitutionally valid |
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What You'll Learn
Article 370's revocation by the Indian government in 2019
Article 370 of the Indian Constitution provided special status to Jammu and Kashmir, granting them a degree of autonomy within the Indian Union. The article emerged from historical complexities, including the region’s pre-independence status and subsequent accession to India during a critical period in 1947.
Article 370 was revoked by the Indian government in 2019. On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha (upper house of the Indian Parliament) that the President of India, Ram Nath Kovind, 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. This meant that the separate Constitution of Jammu and Kashmir was abrogated.
The revocation of Article 370 was a significant constitutional shift in India, facilitating the integration of Jammu and Kashmir into the Union. It was a historic move that was accompanied by the bifurcation of the state into two Union Territories: Jammu and Kashmir, which will have a state legislature; and Ladakh, which will be ruled directly from New Delhi. The process involved a Presidential order, parliamentary approval, and the enactment of the Jammu and Kashmir Reorganisation Act 2019.
The stated intent of the BJP government in rendering the provision inoperative was to integrate Jammu and Kashmir fully with India, to confront insurgency and separatism in the region, and to improve development. Critics, however, argued that the motive was to alter the region’s Muslim-majority demographic. By removing the definition of “permanent residents,” all Indian citizens were allowed to purchase land in Jammu and Kashmir, allowing for an influx of non-Kashmiris into the union territory. The revocation of Article 370 also extends to a key provision, Article 35A, which gave special privileges to permanent residents, including state government jobs and the exclusive right to own property in Jammu and Kashmir.
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Jammu and Kashmir's special status
Article 370 of the Indian Constitution gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent. It is part of the larger region of Kashmir, which has been the subject of a dispute between India, Pakistan, and China since 1947. Jammu and Kashmir was administered by India as a state from 17 November 1952 to 31 October 2019.
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 Article 370 altogether, in which case the entire Indian Constitution would have applied to the state.
Article 370 embodied six special provisions for Jammu and Kashmir. Firstly, it exempted the state from the complete applicability of the Indian Constitution. Secondly, it conferred on the state the power to have its own constitution. Thirdly, central legislative powers over the state were limited, at the time of framing, to the subjects of defence, foreign affairs, and communications. Fourthly, other constitutional powers of the Central Government could be extended to the state only with the concurrence of the State Government. Fifth, the 'concurrence' was only provisional and had to be ratified by the State's Constituent Assembly. Finally, Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.
The Constituent Assembly of Jammu and Kashmir dissolved itself on 25 January 1957 without recommending either the abrogation or amendment of 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.
However, on 5 August 2019, the Government of India revoked the special status granted to Jammu and Kashmir under Article 370. The revocation was accompanied by the cutting off of communication lines in the Kashmir Valley and the deployment of thousands of additional security forces. Several leading Kashmiri politicians were also taken into custody. The government justified the revocation by stating that it would enable the people of the state to access government programmes and enjoy the same rights as other Indian citizens. The revocation of Article 370 also resulted in the repeal of Article 35A, which had empowered state lawmakers to grant special rights and privileges to permanent residents of the state.
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The region's internal sovereignty
Article 370 of the Indian Constitution was a temporary provision inserted on 17 October 1949, which gave special status and powers to the state of Jammu and Kashmir. It was a unique arrangement that granted the state a degree of autonomy within the Indian union. This autonomy included the power to have its own constitution, a separate flag, and the freedom to make its own laws.
The internal sovereignty of Jammu and Kashmir also extended to the state's budget, spending, employment, education, and economic activity, which were overseen by the state assembly. This assembly had the authority to determine which provisions of the Indian Constitution would apply to the state and could even abrogate Article 370 altogether, in which case, all of the Indian Constitution would apply to the state.
However, on 5 August 2019, the Indian government revoked Article 370, ending the region's special status and internal sovereignty. This decision was made by Prime Minister Narendra Modi's government and was upheld by the Supreme Court. The state was also split into two federally administered territories: Jammu and Kashmir in the west, and Ladakh in the east, both ruled directly from New Delhi.
The revocation of Article 370 was a controversial issue, with some seeing it as a violation of the unique relationship between Kashmir and India. The region's special status had been a temporary provision due to war conditions in the state, and its removal was deemed constitutionally valid by the Supreme Court.
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Article 370's constitutionality and legal challenges
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 a separate constitution, a state flag, and autonomy over internal administration. The article was deemed to have become a permanent feature of the Indian Constitution as the Constituent Assembly of Jammu and Kashmir dissolved itself in 1957 without recommending the abrogation of Article 370.
The constitutionality of Article 370 has been challenged multiple times over the years. In the 1972 case of Mohd Maqbool Damnoo vs State of Jammu and Kashmir, the petitioner challenged the constitutionality of interpreting and replacing the Sadar-i-Riyasat with the Governor of the state. The Supreme Court of India held that the Governor is the successor to the Sadar-i-Riyasat and is able to give the State Government's concurrence to any amendments under Article 370.
In 2019, the Bharatiya Janata Party (BJP) included the integration of Jammu and Kashmir in its campaign promises for the Indian general election. After winning a majority in the Lok Sabha, the lower house of the Indian Parliament, the BJP-led government issued a Presidential Order on 5 August 2019, 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 Jammu and Kashmir under Article 370.
The revocation of Article 370 was challenged in the Supreme Court of India, with 23 petitions presented challenging the constitutionality of the abrogation. A five-judge bench of the Supreme Court unanimously upheld the abrogation, ruling that the region's special status had been a "temporary provision" and that removing it in 2019 was constitutionally valid. The Court held that Article 370 was an "interim arrangement due to war conditions in the state".
The revocation of Article 370 has also led to the repeal of Article 35A, which had allowed Jammu and Kashmir to define permanent residents of the state and grant them certain special rights and privileges. This has raised fears that the Indian government is trying to engineer a "demographic shift" in the Muslim-majority region.
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The impact of repealing Article 370
Article 370 of the Indian Constitution was a 'temporary provision' that gave special status to the state of Jammu and Kashmir, located in the northern part of the Indian subcontinent. It was a part of the larger region of Kashmir, which has been the subject of a dispute between India, Pakistan and China since 1947. The article conferred powers on Jammu and Kashmir to have a separate constitution, a state flag and autonomy over internal administration.
On the other hand, the repeal of Article 370 has also led to fears of a "demographic shift" in the Muslim-majority region. With the scrapping of Article 35A, which was added to Article 370 in 1954, non-Kashmiris are now allowed to buy property in the region. This has raised concerns among locals about potential changes to the region's culture and demographics. There are also worries that the Indian government is attempting to engineer a larger shift in the region's population, which could lead to further tensions and unrest.
The revocation of Article 370 has also had an impact on the region's politics. Several leading Kashmiri politicians were taken into custody following the repeal, and no regional elections have been conducted in the two new union territories. The Supreme Court has ordered Indian-administered Kashmir to hold local legislative elections, but it is unclear when or if these will take place. The repeal of Article 370 has also been a boost for the governing Hindu nationalist Bharatiya Janata Party (BJP), which had included the integration of Jammu and Kashmir in its campaign promises.
Overall, the impact of repealing Article 370 has been complex and multifaceted. While it has allowed for a more direct rule by the Indian government and the extension of certain rights and programmes to the region, it has also led to fears of cultural and demographic changes and has had a significant impact on the region's politics. The long-term effects of the repeal remain to be seen, but it is clear that the move has been controversial and has had a significant impact on the people of Jammu and Kashmir.
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Frequently asked questions
Article 370 of the Indian Constitution was a 'temporary provision' that gave special status and powers to the state of Jammu and Kashmir.
Article 370 gave Jammu and Kashmir the power to have its own constitution, a separate flag, and autonomy over internal administration.
Article 370 was introduced in the Constituent Assembly on 17 October 1949 and was enacted on the same day without amendments.
Yes, on 5 August 2019, the Indian government revoked Article 370, ending the special status of Jammu and Kashmir.
