International Journal of Law

International Journal of Law

ISSN: 2455-2194
Impact Factor: RJIF 5.12
www.lawjournals.org
Volume 4; Issue 3; May 2018; Page No. 01-04

Article 370 of the Indian constitution: A study in specific reference to legal dimensions and implications
Surbhi Gupta1, Shashi Bhushan Ojha2
1
BBA.LLB (Hons), Law College Dehradun, Uttaranchal University, Uttarakhand, India
2
Assistant Professor, LLB (Hons), Law College Dehradun, Uttaranchal University, Uttarakhand, India

Abstract
Indian Constitution is one the most efficient written Constitution that any country has ever produce. It is a mixture of various other
Constitutions, the Constitution makers had to be very prudent while making the draft of the Constitution because of the diversity
India contains inside. Every State in India is unique and has its own diversity
But the most beautiful and the most diverse and focus attracting State is in the Northern and of the country India. Article 370 talks
about the special status that has been given to the State of Jammu and Kashmir.
This purpose of this paper is intended towards exploring a lot of puzzling questions, starting from the history of Jammu and
Kashmir, towards what was the need to incorporate this Article what circumstances led to the introduction of this Article, why this
Article has been a controversial subject, also this paper would and ending with the conclusion which will tell us that the existence
of Article 370 should be supported or not, in all Article 370would be dealt in every important aspect.

Keywords: Indian constitution, specific reference, legal dimensions, implications

Introduction recent years there has been insistent emphasis on the

The present study is aimed to trace the process of recognition of sub-national diversities of India as components
federalization in India and the inclusion of special provisions of the Indian federal system. The present study, which is
for the Jammu and Kashmir state embodied in Article 370 of focused on the analysis of the constitutional placement of
the constitution of India. Since Jammu and Kashmir presents a Jammu and Kashmir in the Indian federal structure, as a sub-
variant of the federal structure in which the Indian States were national identity, reveals much and can serve as an indicator
welded, the present study is expected to provide a perspective for any reconsideration of the federal relations the constitution
for the future evolution of the federal frames which the of India embodies.
founding fathers of the constitution of India constructed. In

Fig 1

Important features of article 370 of Indian constitution was omitted from constitution in 1956 during the seventh
As per Indian constitution Article 370 provides temporary constitution amendment when Indian state were
provision to the state of Jammu and Kashmir granting it a reorganized, shall not apply to the state of J&K. this is to
special status and a constitutional aspects called autonomy. note that Article 238 deals with 9 part b state of free India
Some of the important features of Article 370 in relation with which were the princely states of British India.
the state of Jammu and Kashmir are explain in following 2. Doctor Dr B R Ambedkar who was the chairman of
points. drafting committee of Indian constitution was against
1. The Article says that the provision of Article 238, which Article 370 the matter became the political prestige of

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Jawaharlal Nehru, In 1949, then prime minister who recognize by the president upon recommendation of
eventually directed Gopal Swami Ayyangar who was a legislative assembly as Sardar-E-Riyasat (governor) for the
minister without portfolio in first cabinet of India to draft timing in office.
Article 370 in consultation with sheikh Abdullah this is to 5. Except for defence,foreign affairs and communication, all
note that Gopal swami Ayyangar was the Former Diwan to others laws passed by Indian Parliament need to be passed
Maharaja Harris Singh of J&K and sheikh Abdullah was by the state government before they are made applicable
the influential mask leader of J&K state at that time. This was specified in the instrument of accession signed
3. Article 370 was drafted in amendment of constitution in by Maharaja Hari Singh When he agreed to join the union
part XXI under temporary and transitional provisions. of India in 1947,instead of going with Pakistan
4. As per original draft of Article 370, the government of 6. As a result of this, the citizen of J&k are governed by state
state means the person with organize by the president as specific laws which come under the constitution of J&k,
the Maharaja of J&K for time being in office. This was instead of those for the rest of India
change in 1952 to government of state means the person

Fig 2

7. This Article along with Article5 that define the contours of 10. The agreement opposed imposition of Article 352,
Jurisdiction of Indian parliament regarding law making for empowering the president to proclaim general emergency
the state, cannot be amended. in the state.
8. The 1952, Delhi agreement also specified that the state
should have its own flag in addition to the union flag and Problems
they should have the same status. Only a permanent resident can buy land in the state and
citizens from other Indian other state face some restrictions.
It is not easy for outsider to operate their businesses here.
This help local resident in making more profit.it also reduces
competition.
Outsider is not allow to make any kind of construction in J&K
which contains prices of real estate if Article 370 is remove
than the prices of property will go very high.
i.e. a normal home which now cost RS70lakh will then cost
Rs1crore approximately

Pros
1. It has preserve and protect the ecology environment and
biodiversity in J&K to some extent.
Fig 3 2. Government jobs are still available to residence of J&K.
3. Local brands are still running here due to less competition.
9. This arrangement was further ratified by the 1974 4. Maintains the status of J&K with union of India
agreement between Prime Minister Indira Gandhi and J&K 5. Less crime rate and traffic but terrorist is high which is the
Prime Minister Sheikh Abdullah (appointed by Hari main negative issue.
Singh). It was agreed that head of state called Sardar-I- 6. Less pollution as there are not very much industries i.e. not
Riyasat (or the prime minister) was to be elected by the giving any permission for opening new business and
state legislature. industries.

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7. Maintain the inland quality. Shariah law is applicable to women in Kashmir.

8. Has to maintain Indian claims over Kashmir in world eye. There are no rights to panchayat in Kashmir, minorities in
Kashmir (Hindu, Sikh) does not get 16% reservation.
Cons Indian parliament does not have any major rights over
1. Lack of medical facilities, no single private hospital in Kashmir it can only control issue of defence, international
Jammu which include adjoining districts. relation and communication.
2. Terrorism in state is because of 370 and because Pakistan
claims over Kashmir. Scope of Study
3. Lack of basic modern facilities like high speed internet, 24 It presenting the personal views regarding study of Article
hours electricity and 24 hours of water supply. 370, Constituion of J&K is the integral part of India and will
4. Less competition makes the progress of student slow and always remain to be in same way. The Indian laws should also
dull that means grow and development is low. be made applicable in J&K in same way as they are applicable
5. No opportunity for state student to appear in other state in other state of India total inclusion of J&K in India is the
exam. only way by which the difference between India and Pakistan
6. No industrial sector is available. can be solved Kashmir should be included in India because
7. Jammu is always ignores in comparison to Kashmir just king of J&K sign the accession in India and not with Pakistan.
because it’s an international issue. Pakistan is just claiming it on the basis of majority of Muslim
8. It has hindered the progress of our state to a large extent. there in Kashmir which can’t be justified in anyway. J&K is
9. Corruption is much more in J&K than from others because most burning issue which needs to be solved but its pending
of special status and laws. since 60years of independence due to some mistake
Only Muslim can become chief minister of J&K, no Hindu committed by politician between time span of 1947-1953, this
can become chief minister of J&K. is the right time to take proper decision regarding the status of
10. It has reduce the participation of non-Muslim community J&K if proper steps are not taken then it is possible that issue
in politics and other fares. will fire up more in future and will prevent Kashmir even the
11. Education has suffered a lot due to this. whole world will be developed.
12. Less GDP as well as revenue i.e. net income is less,
growth is less, less jobs and unemployment are the major Research Question
problem due to this Article. Due to this youth can more  Is there a need for revoke the citizenship of J&K if the
participate in terrorism. women marry in other states, Why can’t revoke if marry in
13. Lack of control on government of India and their policy on Pakistan?
our state.  Why outsiders not buy the land in Jammu and Kashmir?
14. The main problem is gender base, many claim to have a  Why Jammu and Kashmir have dual citizenship and
negative thought about the Article 370 as it disqualifies different flag?
women from the state of property rights.  Why legislative assembly term is 6 years?
15. However it is less known that the Article, itself was gender  Why the special status has been given to Jammu and
neutral but the definition of permanent resident in the state Kashmir?
constitution based on the notification issued in April 1927
and June 1932 during the Maharaja rule was thought to be Hypothesis
discriminatory. Equality among all the other states.
Flag, citizenship, women status and land.
What is article 370?
Indian constitution deals with the special status given to the Research Methodlogy
state of J&K. It comprises the theoretical analysis of the body of method
J&K citizen have dual citizenship. and principle associated with a branch. Constitution of J&K –
Jammu and Kashmir national flag is different. its development and comment by Anant, Article370 a
Jammu and Kashmir legislative assembly term is 6 years constitution history of J&K OIP by AG Noorani. The present
whereas its 5years for the states of India. study will be mainly analytical and theoretical, if possible
The order of state of India are not valid in Jammu and based on primary and secondary sources so as to address the
Kashmir. research question raised and test the hypothesis sources
Parliament of India may makes laws in extremely limited include selected J&K courts and legal firms will also be
areas in terms of Jammu and Kashmir. consult.
In Jammu and Kashmir if a women’s marries a person of any
other state of India, citizenship to the female ends. References
If a women marries a man in other Indian states she loses her 1. Report of the commission appointed under the Orders of
citizenship whereas if any women marry a Pakistani she will His Highness the Maharaja Bahadur dated the 12th
be entitle to have a citizenship of Jammu and Kashmir. November, 1931, to enquire into Grievances and
Outsider cannot own a land in Jammu and Kashmir because of Complaints (Glancy Commission Report); unpublished.
section 370 RTI does not apply on Jammu and Kashmir, RTE 2. Orders on the recommendations contained in the Glancy
is not implemented, CBI does not apply, Indian laws are not Commission Report, Jammu, 1932; unpublished
applicable. 3. Report of the Drafting Committee, Srinagar, Jammu and

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Kashmir Constituent Assembly, 1956.

4. Report of the Basic Principles Committee on
Fundamental Rights and Citizenship, Jammu and
Kashmir Constituent Assembly, 1954
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(Disqualification) Bill, 2004
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Delhi, 1961
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