The Indian Constitution had a clause Article 370[1] that gave the Jammu and Kashmir territory considerable autonomy. It was incorporated into the 1949 Constitution and gave Jammu and Kashmir a special status, enabling the state to make decisions and have its own constitution—except defence, communications, and foreign policy considerations.
The purpose of Article 370’s unique status was to be temporary; Jammu and Kashmir’s future relationship with the Indian Union and recommendation regarding removal of Article 370 was to be determined by the state’s constituent assembly. But the assembly dissolved in 1957 without reaching a decision, therefore Article 370 remained in effect[2].
With time, Article 370 gained traction despite criticism that it hindered Jammu and Kashmir’s integration into the larger Indian subcontinent. Under the leadership of Prime Minister Narendra Modi, the Indian government acted historically in August 2019 when they revoked Article 370 by presidential decree and subsequent Parliamentary resolution.
The state was divided into Jammu & Kashmir and Ladakh, two distinct Union Territories, as a result of Article 370 being repealed. The objectives of this action were to advance equal rights, encourage development, and strengthen regional integration with the national economy. Both domestically and internationally, the decision elicited support and resistance and prompted conversations on the political and constitutional ramifications of such a momentous step.
Historical background
From 1846 until 1858, Jammu and Kashmir was a princely state ruled by the British in a subsidiary alliance with the British East India Company. It thereafter came under the British Crown until 1947. The creation of the princely state occurred after the First Anglo-Sikh War, when the East India Company sold the Kashmir Valley to Gulab Singh, the Maharaja of Jammu, for Rs 75 lakh. The company had taken the valley from the Sikhs as a war reparation.
Jammu and Kashmir retained their autonomy while being a part of the British Raj, except for communications, foreign policy, and defence issues. It also prohibited foreigners from owning real estate in the state.
But by 1947, things had quickly shifted. Maharaja Hari Singh, the ruler of Jammu and Kashmir, chose not to support Pakistan or India during the Partition. He was forced to reconsider his choice, nonetheless, when Pakistani tribal militias, supported by the nation’s bureaucracy, invaded him in October 1947.
In a frantic attempt to get help in repelling the invasion, the Maharaja made a desperate call to New Delhi. Jawaharlal Nehru, the prime minister of India at the time, approved the assistance but required Hari Singh to sign an Instrument of Accession[3] before giving his consent.
The Raja had no choice but to accept. He did, however, ensure that its sovereign status was preserved and not revoked by the Instrument of Accession.
On October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession, committing to accede to the newly independent India in the areas of communications, foreign affairs, and defence.
Under the terms of the Indian Independence Act[4], Lord Mountbatten, the Governor-General of India at the time, approved the accession deal one day later.
Jammu and Kashmir’s accession to India was contingent upon the state maintaining its constitutional rights and a high level of autonomy, as stated in clause 7 of the Instrument of Accession[5]. This particular clause served as a fundamental component in the development of Article 370.
To safeguard these rights and guarantee that Jammu and Kashmir maintained a unique position within the Indian Union, Article 370 was created expressly.
N Gopalaswami Ayyangar, a significant member of the seven-member Indian Constitution Drafting Committee, was given the task of drafting the article intended to preserve Jammu and Kashmir’s special status by Jawaharlal Nehru.
The question now is, under what conditions was this Article required? As stated by Gopalaswamy Ayyangar, a close confidant of Nehru who drafted Article 370, “The State’s Constitution and the extent of Union authority over the State would ultimately be determined by the will of the people as expressed through the Jammu and Kashmir Constituent Assembly.”
The Constituent Assembly was unable to convene because of the State’s current unstable circumstances. As a result, the state had no constitution at the time when the rest of India was getting ready to ratify the Indian Constitution. In order to bridge this gap, Article 370 was included in the Indian Constitution with the expectation that J&K would eventually integrate with the Union like other States (hence the term “temporary provisions” in the Article’s title).
July 1949 saw the start of negotiations on the proposed Article’s structure. Ayyangar, Jawaharlal Nehru, Sardar Vallabhbhai Patel, and Sheikh Abdullah—the prime minister of Jammu and Kashmir as well as a member of the Constituent Assembly—were also participating. The conversations went on for several months.
On October 17, 1949, the Constituent Assembly passed Article 370. State lawmakers have the power to grant certain rights and advantages to state permanent residents under Article 35A~, a supplement to Article 370 adopted in 1954.
Evolution of article 370 since 1950
Article 370 has been a subject of various debates, discussions, and cases, some of them were of the view that for the betterment of the state and the country, this provision is necessary whereas others were of the view that this provision was the root of all the disturbance and discrepancies between the state and the rest of the nation, and to curb all these problems, removal of article 370 was necessary but over the years, no action towards removing the provision was taken.
In, 1959 Prem Nath Kaul v. State of Jammu & Kashmir[6] was one of the first cases in history to address Article 370 and the function of the Jammu and Kashmir Constituent Assembly. With the approval of the Jammu and Kashmir Constituent Assembly, the President of India may enforce certain articles of the Indian Constitution in Jammu and Kashmir, as per Article 370(1). According to the ruling, the constituent assembly must make a recommendation as specified in Article 370(3) for the president to have the authority to abrogate Article 370
A Presidential Order in Puranlal Lakhanpal v. The President of India[7] in 1961, permitted Jammu and Kashmir to have direct elections for state legislature representation, but only indirect elections for the Lok Sabha. The Order changed the way that Jammu & Kashmir is excluded from the application of Article 81, which deals with the makeup of the Lok Sabha. The Order was contested by the petitioners, who claimed that the President may only alter “minor” aspects of the Constitution. The Supreme Court upheld the Presidential Order, ruling that an amendment falls under the broad definition of “modification” under Article 370. The Court decided that in the context of Article 370, the term “modification” should be given the “widest possible amplitude.”
The question addressed in the Constitution Bench’s decision in Sampat Prakash v. State of Jammu & Kashmir[8] in1968, was: Can the President extend the implementation of an order under Article 370 (1) after the J&K Constituent Assembly has dissolved? The decision was made following the assembly’s dissolution. It was decided that even after the Jammu and Kashmir Constituent Assembly was dissolved, Article 370 would still be in effect. They clarified that only the State’s Constituent Assembly might request that Article 370 be terminated, as stipulated by Article 370(3). The Constituent Assembly made no such recommendation at the time of dissolution, they ruled. To put it another way, Article 370 was unchangeable.
The Supreme Court considered an appeal against the Union government’s Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in State Bank of India v. Santosh Gupta[9] in 2016. The petitioners argued that this Act conflicted with the Jammu and Kashmir Transfer of Property Act, of 1920, a piece of state-specific legislation. The legislation of the Union was affirmed by the Supreme Court. The Supreme Court noted during the proceedings that no specific timeframe for Article 370’s implementation was provided. Until the Constituent Assembly recommended that the provision be discontinued, it would remain in force. This ruling strengthened the argument that the approval or concurrence of the Jammu and Kashmir Constituent Assembly was essential to repeal Article 370.
Abrogation of article 370
In June 2018, following a political breakdown between the two governments in coalition and the Bhartiya Janta Party’s withdrawal of support from the People Democratic Party, the state of Jammu and Kashmir was placed under governor’s rule for the eighth time, recommended by then Governor VV Vohra as stipulated by Article 92 of the J&K Constitution[10]. However, in December 2018, the state was placed under the President’s rule under Article 356[11] of the Indian Constitution, since no government could be formed during the six months of the Governor’s rule. During that period, the Indian federal government gained direct control over the state of J&K. The president’s term was extended for an additional six months later in July. The Governor of Jammu and Kashmir’s report[12] stated that the “prevailing situation in Jammu and Kashmir” necessitates extended continuance of the rule, However, before those six months were up, The Central Government declared on August 5, 2019, that Article 370 had been repealed, that Jammu and Kashmir would now be subject to all of the Indian Constitution’s provisions, and that the state’s unique status was no longer legitimate through a presidential order (C.O. 272)[13]. Additionally, on 9th August, 2019, the Jammu & Kashmir (Reorganisation) Act, 2019[14] was passed, converting Jammu and Kashmir from a state to two distinct union territories: the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh.
The opposing party and the general people were against repealing Article 370. The opposition argued that the repeal of the aforementioned article was impossible because, as stated in Art. 370(3)[15], the president could only act on the Constituent Assembly’s recommendation. The Assembly was dissolved a long time ago; hence this article could not be repealed. “The word ‘Constituent Assembly of the State referred to in Clause (2)[16]” shall read ‘Legislative Assembly of the State,’ the central government said. And since at the moment the state is under the president’s rule, there is no legislative assembly. The president acknowledges the governor’s agreement as the legislative assembly of Jammu and Kashmir.
Unveiling the aftereffects
Regarding the legitimacy of removing Article 370 from the Indian Constitution, numerous petitions were being filed. Several conversations and arguments were going on between various groups, particularly the state’s residents. Arguments regarding the Order’s constitutionality were heard by a three-judge bench, presided over by former Chief Justice Ranjan Gogoi, former Chief Justice S.A. Bobde, and Justice Abdul Nazeer, on August 28, 2019. After deliberating on the issue for two days, the Bench decided it was imperative to forward the case to a Constitution Bench for additional review.
A five-judge court led by former Chief Justice N.V. Ramana adjudicated Shah Faesal v. Union of India[17] in 2020. Justices S.K. Kaul, R. Subhash Reddy, B.R. Gavai, and Surya Kant declined to send the case to a larger bench. The petitioners claimed that the decisions made in Maqbool Damnoo, Sampat Prakash, and Prem Nath Kaul were at odds with one another. They contended that Prem Nath Kaul established the requirement for the Constituent Assembly’s approval before the President could exercise his power and therefore the President’s authority ceased upon the dissolution of the Constituent Assembly. The Prem Nath ruling was explicitly challenged by the later rulings in Sampat Prakash and Maqbool Damnoo, which maintained the legality of presidential instructions even after the Constituent Assembly had adjourned. The petitioners contended that a bigger Constitution bench should be consulted due to the clear disagreement between the rulings. The Bench dismissed these arguments, stating that Prem Nath and Sampath Prakash’s circumstances differed fundamentally[18]. The Supreme Court emphasised that Prem Nath Kaul differs from the succeeding decisions in that it did not examine the issue of Article 370’s continued applicability following the Constituent Assembly’s dissolution.
Later, on July 3, 2023, the Supreme Court designated a new Constitution Bench, led by Chief Justice D.Y. Chandrachud and including Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, to take up the challenge to the abrogation of Article 370. The hearings were scheduled to start on August 2, 2023, which is nearly 4 years after Jammu & Kashmir’s special status was taken away.
Final Decision
Ultimately, on December 11, 2023, The Bench determined unanimously that Article 370 was a provision intended to allow for the eventual merger of Jammu and Kashmir with the rest of India, and that its abrogation was legitimate under the constitution.
The Bench determined that Jammu and Kashmir was an attribute of asymmetric federalism rather than possessing internal sovereignty. They went on to say that the President could potentially repeal Article 370 without the Jammu and Kashmir Constituent Assembly’s approval. Given Solicitor General Tushar Mehta’s guarantee that statehood for J&K will be restored shortly, the Bench did not address the legitimacy of the reorganization of Jammu and Kashmir into the Union Territories of Jammu and Kashmir and Ladakh. They maintained the decision to divide the Ladakh Union Territory. Finally, the ruling stated that the repeal of Article 370 rendered the Jammu and Kashmir Constitution invalid.
[1] INDIA CONST, art. 370.
[2]Nirmal Ghorawat, Article 370: A Primer, PGURUS (Feb.11, 2024, 4:43 PM) https://www.pgurus.com/article370-primer/
[3] Venkatesh Nayak, The Backstory Of Article 370: A True Copy Of J&K’s Instrument Of Accession, THE WIRE (Feb 19, 2024, 6:15 PM) https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession India
[4] Indian Independence Act, 1947, No. 10, Acts of Parliament, 1947 (India)
[5] Instrument of Accession, Maharaja Hari Singh, October 26, 1947.
[6] Prem Nath Kaul v. State of Jammu & Kashmir 1959 AIR 749 1959 SCR Supl.
[7] Puranlal Lakhanpal v. The President of India 1962 SCR (1) 688
[8] Sampat Prakash v. State of Jammu & Kashmir 1969 SCR (3) 574
[9] State Bank of India v. Santosh Gupta (2) SCC 538
[10] JAMMU AND KASHMIR CONST, 1956, art 92
[11] INDIA CONST, art. 356.
[12]PM India, https://www.pmindia.gov.in/en/news_updates/cabinet-approves-extension-of-presidents-rule-in-jk-for-six-months-with-effect-from-3rd-july-2019/, (last visited Feb 22, 2024)
[13] Presidential Order No. 272, 2019, The Constitution (Application to Jammu and Kashmir) Order, 2019, The Gazette of India, Extraordinary, Part II, Section 3(ii).9
[14] Jammu and Kashmir (Reorganization) Act, 1947, No. 34, Acts of Parliament, 2019 (India)
[15] INDIA CONST, art. 370, cl. 3.
[16] INDIA CONST, art. 370, cl. 2.
[17] Shah Faesal v. Union of India, (2020) 4 SCC 1
[18] Supreme Court Observer, https://www.scobserver.in/reports/manohar-lal-sharma-union-of-india-article-370-reference-judgment-summary/( last visited Feb 16, 2024)
Author: Aarohi Gupta
Juris Centre 