Historical Backdrop
The story of Article 370 begins in the closing months of British colonial rule. At the time of independence in 1947, princely states were given the choice to join either India or Pakistan or remain independent. The princely state of Jammu and Kashmir, ruled by Maharaja Hari Singh, initially sought to remain independent. However, when faced with an invasion by armed tribesmen and irregulars from Pakistan, the Maharaja signed the Instrument of Accession on 26th October 1947, acceding to India on matters of defence, foreign affairs and communications.
The accession, however, was not unconditional. Article 370 was inserted into the Constitution as a temporary provision to recognize Jammu and Kashmir’s special circumstances. Drafted under the guidance of N. Gopalaswami Ayyangar, Article 370 granted special autonomy to the state, providing it with its own Constitution and significant legislative powers.
The Constitutional Text and Its Scope
Article 370 (originally Article 306A in the draft) provided that:
- The provisions of Article 238 (dealing with Part B States) would not apply to Jammu and Kashmir.
- Parliament could make laws for the state only in matters specified in the Instrument of Accession (defence, external affairs and communications).
- Any extension of other constitutional provisions required the concurrence of the State Government.
- The President of India could extend provisions of the Constitution to Jammu and Kashmir through a Presidential Order, but only with the state’s concurrence.
In practice, this arrangement meant that Jammu and Kashmir had its own Constitution (framed in 1956), its own flag, and its own laws concerning residency and property rights under Article 35A (inserted later through a Presidential Order in 1954). Indian citizens from other states could not purchase land in Jammu and Kashmir, and the state enjoyed a unique degree of legislative independence.
Judicial Interpretation and Challenges
The Supreme Court of India has, over the years, clarified the legal contours of Article 370. One landmark case is Sampat Prakash v. State of Jammu & Kashmir (1968), where the Supreme Court held that Article 370 had acquired a permanent character due to the fact that the Constituent Assembly of Jammu and Kashmir, which alone could recommend its abrogation, had dissolved in 1957 without making such a recommendation.
Another significant judgment is State Bank of India v. Santosh Gupta (2017), where the Court reiterated that despite its ‘temporary’ heading, Article 370 had assumed permanence until a recommendation for its abrogation was made by the State Constituent Assembly.
The Presidential Orders and Progressive Erosion
Over decades, the special status envisaged under Article 370 was gradually diluted through multiple Presidential Orders. Using Article 370(1)(d), successive Presidents, with the concurrence of the state government, extended various provisions of the Indian Constitution to Jammu and Kashmir. This led to the erosion of the state’s original autonomy, bringing it closer to other Indian states in practice, although its formal special status remained intact.
The Abrogation: August 2019
The status quo dramatically changed on 5th August 2019, when the Government of India, led by Prime Minister Narendra Modi and Home Minister Amit Shah, effectively abrogated Article 370 through a multi-step legal mechanism.
- Presidential Order C.O. 272: Issued under Article 370(1), this order superseded the earlier 1954 order and extended all provisions of the Indian Constitution to Jammu and Kashmir.
- Reinterpretation of ‘Constituent Assembly’: Since the state’s Constituent Assembly had dissolved in 1957, the Government argued that the powers of the Constituent Assembly devolved to the State Legislative Assembly. But as the State Assembly was dissolved and President’s Rule was in place, Parliament (acting as the State Legislature) gave the necessary ‘recommendation’.
- Jammu and Kashmir Reorganisation Act, 2019: Parliament passed legislation bifurcating the State into two Union Territories—Jammu and Kashmir (with a Legislative Assembly) and Ladakh (without one).
This move annulled the special status and brought Jammu and Kashmir fully under the Indian Constitution like any other state or Union Territory.
Legal Challenges
The abrogation has been challenged before the Supreme Court, with petitioners arguing that the procedure adopted was unconstitutional and that Article 370 had acquired a permanent status. The matter involves complex constitutional questions: whether Parliament can dissolve or bypass the Constituent Assembly’s recommendation requirement, whether a state can be bifurcated without its Legislative Assembly’s consent, and whether the Presidential Order mechanism was misused. These petitions remain pending as of now, and their resolution will have far-reaching implications for federalism and constitutional interpretation in India.
Implications and Criticism
Supporters of the abrogation argue that it has integrated Jammu and Kashmir fully with the Union, removing an ‘anachronistic’ provision that hindered economic development and national unity. They contend that the move will attract investment, create jobs and ensure equal rights for women and marginalized communities who were disadvantaged under local laws.
Critics, however, argue that the manner of the abrogation—carried out while the state was under President’s Rule and amid heavy security lockdown—undermined democratic principles and federalism. Many also point to prolonged internet shutdowns and detention of political leaders as violations of civil liberties.
Conclusion
Article 370’s journey from a temporary provision to a symbol of Kashmiri identity and then to its controversial abrogation reflects India’s struggle to balance its federal structure with national unity. The Supreme Court’s final word on the matter will be crucial in clarifying whether constitutional procedures were respected and what this means for the balance of power between the Centre and the states.
While the legal questions linger, the political and social realities in the region continue to evolve. Whether the promises of peace, development and integration materialize remains to be seen, but Article 370 will always stand as a reminder of the unique historical and constitutional experiment that defined Jammu and Kashmir’s place in the Indian Union.
References:
- Sampat Prakash v. State of Jammu & Kashmir, AIR 1970 SC 1118
- State Bank of India v. Santosh Gupta, (2017) 2 SCC 538
- Instrument of Accession (1947)
- Presidential Orders under Article 370