Article 370 of The Constitution of India PDF
Article 370 of The Constitution of India PDF
Article 370 of The Constitution of India PDF
Article 370 of the Indian constitution gave special status to the region of Jammu and Kashmir.[1] The article was drafted in Part
XXI of the Constitution: Temporary, Transitional and Special Provisions.[2] The Constituent Assembly of Jammu and Kashmir,
after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or
to abrogate the Article 370 altogether. After the Jammu and Kashmir Constituent Assembly later created the state's constitution
and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent
feature of the Indian Constitution.[3][4]
This article, along with Article 35A, defined that the Jammu and Kashmir state's residents live under a separate set of laws,
including those related to citizenship, ownership of property, and fundamental rights, as compared to resident of other Indian
states.[5] As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.[6]
On 5 August 2019, the President of India Ram Nath Kovind issued a constitutional order revoking the 1954 order, and making all
the provisions of the Indian constitution applicable to Jammu and Kashmir. The order rendered the Article 370 and Article 35A of
the Indian constitution ineffective.[7][8][9]
Home Minister Amit Shah introduced a bill in the upper house of the Parliament, Rajya Sabha, seeking to reorganise the state
with Jammu and Kashmir serving as a Union Territory and Ladakh region as a separate union territory.[10] On the same day, the
bill was passed in the Rajya Sabha. On 6 August 2019, the bill was also passed in the lower house, Lok Sabha[11][12] with an
overwhelming majority. The bill stipulates that the state of Jammu and Kashmir will be split into two union territories of Ladakh
and an eponymous Jammu and Kashmir region.
Contents
Purpose
Original text
Analysis
Presidential orders
Presidential order of 1950
Presidential order of 1952
Presidential order of 1954
Further presidential orders
Autonomy of Jammu and Kashmir: Structure and limitations
Applicability of the Indian law to Jammu and Kashmir
Constitution of Jammu and Kashmir
Implications
Calls for abrogation
2019 actions by the Union government
Presidential orders
Change of status of Jammu and Kashmir
See also
Notes
References
Bibliography
External links
Purpose
The state of Jammu & Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs
and communications. All the princely states were invited to send representatives to India's Constituent Assembly, which was
formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states.
Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra Union, Travancore-Cochin and
Mysore. Even though the States Department developed a model constitution for the states, in May 1949, the rulers and chief
ministers of all the states met and agreed that separate constitutions for the states were not necessary. They accepted the
Constitution of India as their own constitution. The states that did elect constituent assemblies suggested a few amendments
which were accepted. The position of all the states (or unions of states) thus became equivalent to that of regular Indian
provinces. In particular, this meant that the subjects available for legislation by the central and state governments was uniform
across India.[13]
In the case of Jammu and Kashmir, the representatives to the Constituent Assembly[14] requested that only those provisions of the
Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Accordingly, the
Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave
powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent
assembly. This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the
State's constitution.[15] However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending
either abrogation or amendment of the Article 370. Thus the Article has 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, the latest of which was
in April 2018.[16][17][18][4]
Original text
370. Temporary provisions with respect to the State of Jammu and Kashmir
(a) the provisions of article 238 shall not apply now in relation to the state of
Jammu and Kashmir;[a]
(b) the power of Parliament to make laws for the said state shall be limited to
—
(i) those matters in the Union List and the Concurrent List which, in
consultation with the Government of the State, are declared by the
President to correspond to matters specified in the Instrument of
Accession governing the accession of the State to the Dominion of India
as the matters with respect to which the Dominion Legislature may make
laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the
Government of the State, the President may by order specify.
Explanation: For the purpose of this article, the Government of the State means the person for the time being
recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat
(now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time
being in office.[2][19][b]
(c) the provisions of article 1 and of this article shall apply in relation to that
State;
(d) such of the other provisions of this Constitution shall apply in relation to
that State subject to such exceptions and modifications as the President may
by order specify:
Provided that no such order which relates to the matters specified in the
Instrument of Accession of the State referred to in paragraph (i) of sub-clause
(b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those
referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1)
or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the
purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such
decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification,
declare that this article shall cease to be operative or shall be operative only with such exceptions and
modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be
necessary before the President issues such a notification.[20]
Analysis
The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State could not be compelled to
accept any future Constitution of India. The State was within its rights to draft its own Constitution and to decide for itself what
additional powers to extend to the Central Government. The Article 370 was designed to protect those rights.[21] According to the
constitutional scholar A. G. Noorani, the Article 370 records a 'solemn compact'. Neither India nor the State can unilaterally
amend or abrogate the Article except in accordance with the terms of the Article.[22]
Article 370 embodied six special provisions for Jammu and Kashmir:[23]
1. It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have
its own Constitution.
2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence,
foreign affairs and communications.
3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence
of the State Government.
4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.
5. The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was
convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further
extension of powers was possible.
6. The Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent
Assembly.
Once the State's Constitutional Assembly convened on 31 October 1951, the State Government's power to give `concurrence'
lapsed. After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority
provided to extend more powers to the Central Government or to accept Central institutions vanished. Noorani states that this
understanding of the constitutionality of the Centre-State relations informed the decisions of India till 1957, but that it was
abandoned afterwards. In subsequent years, other provisions continued to be extended to the State with the 'concurrence' of the
State Government.[24][25][26]
Presidential orders
In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the
Government of the State of Jammu and Kashmir made a series of orders.
Thirty eight subjects from the Union List were mentioned as matters on which the Union legislature could make laws for the
State. Certain articles in ten of the twenty-two parts of the Indian Constitution were extended to Jammu and Kashmir, with
modifications and exceptions as agreed by the state government.[27]
Background: The Constituent Assembly of Jammu and Kashmir was elected in 1951 and convened on 31 October 1951. The
Basic Principles committee of the Constituent Assembly recommended the abolition of the monarchy, which was unanimously
approved by the Assembly on 12 June 1952. In the same month, the Hindu-dominated Jammu Praja Parishad submitted a
memorandum to the President of India demanding the full application of the Indian Constitution to the State. The Government of
India summoned a delegation from Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the
State. After discussions, the 1952 Delhi Agreement was reached.[28]
The State's prime minister Sheikh Abdullah was slow to implement the provisions of the Delhi Agreement. However, in August
1952, the State Constituent Assembly adopted a resolution abolishing the monarchy and replacing the position by an elected Head
of State (called Sadar-i-Riyasat). Despite reservations on this piecemeal approach to adopting provisions, the Central
Government acquiesced, leading to the Presidential Order of 1952. The Legislative Assembly elected Karan Singh, who was
already acting as the Prince Regent, as the new Sadar-i-Riyasat.[29][30]
1. Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state
subjects'). Simultaneously, the Article 35A was added to the Constitution, empowering the state legislature to
legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and
employment.
2. The fundamental rights of the Indian constitution were extended to the state. However, the State Legislature was
empowered to legislate on preventive detention for the purpose of internal security. The State's land reform
legislation (which acquired land without compensation) was also protected.
3. The jurisdiction of the Supreme Court of India was extended to the State.
4. The Central Government was given power to declare national emergency in the event of external aggression.
However, its power to do so for internal disturbances could be exercised only with the concurrence of the State
Government.
In addition, the following provisions which were not previously decided in the Delhi Agreement were also implemented:
1. Financial relations between the Centre and the State were placed on the same footing as the other States. The
State's custom duties were abolished.
2. Decisions affecting the disposition of the State could be made by the Central Government, but only with the
consent of the State Government.
Background: The State Government's decision to abolish the monarchy led to increased agitation by the Jammu Praja Parishad,
which found support among the Ladakhi Buddhists and the Hindu parties of India.[35] In response, Sheikh Abdullah started
questioning the value of Kashmir's accession to India, leading to a loss of support among his Cabinet members. On 8 August
1953, Sheikh Abdullah was dismissed from the post of prime minister by the Sadar-i-Riyasat Karan Singh and his erstwhile
deputy Bakshi Ghulam Mohammad was appointed in his place. Abdullah and several of his colleagues were arrested and put in
prison.[36][37]
The purged Constituent Assembly, with 60 of the original 75 members, unanimously adopted on 6 February 1954, the
recommendations of its Basic Principles Committee and the Advisory Committee on Fundamental Rights and Citizenship.[38]
According to the Basic Principles Committee:
While preserving the internal autonomy of the State, all the obligations which flow from the fact of accession and
also its elaboration as contained in the Delhi Agreement should find an appropriate place in the Constitution. The
Committee is of the opinion that it is high time that finality in this respect should be reached and the relationship
of the State with the Union should be expressed in clear and precise terms.[37]
On or before 5 August 2019, President Kovind had issued a presidential order under Article 370, superceding the 1954 order. The
order states that all the provisions of the Indian Constitution apply to Jammu and Kashmir, effectively abrogating the separate
Constitution of the state; the constitutionality and effect of this action is contested in the public sphere[7]. See the below section
for more information.
Autonomy of Jammu and Kashmir: Structure and limitations
India's constitution is a federal structure. The subjects for legislation are divided into a 'Union List', a 'State List',and a
'Concurrent List'. The Union List of ninety-six subjects, including defence, military and foreign affairs, major transport systems,
commercial issues like banking, stock exchanges and taxes, are provided for the Union government to legislate exclusively. The
State List of sixty-six items covering prisons, agriculture, most industries and certain taxes, are available for States to legislate on.
The Concurrent List, on which both the Centre and States may legislate include criminal law, marriage, bankruptcy, trade unions,
professions and price control. In case of conflict, the Union legislation takes precedence. The 'residual power', to make laws on
matters not specified in the Constitution, rests with the Union. The Union may also specify certain industries, waterways, ports
etc. to be 'national', in which case they become Union subjects.[43]
In the case of Jammu and Kashmir, the 'Union List' and the 'Concurrent List' were initially curtailed to the matters ceded in the
Instrument of Accession, but they were later extended with the concurrence of the State Government. Until the 2019 Presidential
order, the 'residual powers' continued to rest with the State rather than the Union. According to the State Autonomy Committee,
ninety-four of the ninety-seven items in the Union List applied to Jammu and Kashmir immediately prior to August 2019; the
provisions of the Central Bureau of Intelligence and Investigation and preventive detention did not apply at that time. Of the
'Concurrent List', twenty-six of the forty-seven likewise items applied to Jammu and Kashmir at that time; the items of marriage
and divorce, infants and minors, transfer of property other than agricultural land, contracts and torts, bankruptcy, trusts, courts,
family planning and charities had been omitted - i.e., the State had exclusive right to legislate on those matters. The right to
legislate on elections to state bodies also rested with the State.[44]
However, the 2019 Presidential order supplanted all of these provisions and made the whole of the Indian Constitution,
particularly including the aforementioned lists in full, apply to the territories which were theretofore part of the state of Jammu
and Kashmir. Accompanying actions by the Central government also proposed to split the territory and to reduce local legislative
powers in the same, granting them instead to the Union Government.
Sheikh Mohammad Abdullah, the state's Prime Minister and leader of the Muslims in the Valley, found the inclusion of Article
370 in the 'Temporary and Transitional Provisions' of the Constitution's Part XXI unsettling. He wanted 'iron clad guarantees of
autonomy'. Suspecting that the state's special status might be lost, Abdullah advocated independence from India, causing New
Delhi to dismiss his government in 1953, and place him under preventive detention.[51]
In December 2016, the Supreme Court of India set aside a judgement of the High Court of Jammu and Kashmir which stated that
Jammu and Kashmir had "absolute sovereign power" on account of Article 370. The Supreme Court held that the state of Jammu
and Kashmir has "no vestige" of sovereignty outside the Constitution of India and its own Constitution is subordinate to the
Indian Constitution. The Court upheld the applicability of SARFAESI Act to Jammu and Kashmir as it was under the Union list
of subjects for which the Indian Parliament is empowered to enact laws for the whole of India, including Jammu and
Kashmir.[52][53]
However, in October 2015, the High Court of Jammu and Kashmir ruled that the Article 370 cannot be "abrogated, repealed or
even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend
to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation
before its dissolution in 1957, Article 370 has taken on the features of a "permanent provision" despite being titled a temporary
provision in the Constitution.[57][17] On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that Article
370 has acquired a permanent status. It stated that, since the State Constituent Assembly has ceased to exist, the President of India
would not be able to fulfill the mandatory provisions required for its abrogation.[58]
In 2019, as part of Bharatiya Janata Party manifesto for the 2019 general election, the party again pledged to integrate the state of
Jammu and Kashmir into the Union of India.[59][60][61] This was followed by government actions which attempted to do just that.
Presidential orders
On 5 August 2019. the Home Minister Amit Shah announced in the Rajya Sabha (Upper House of the Indian Parliament) that the
President of India had issued a presidential order (C.O. 272) under Article 370, super-ceding the 1954 order. The order stated that
all the provisions of the Indian Constitution applied to Jammu and Kashmir. Whereas the 1954 order specified that only some
articles of the Indian constitution to apply to the state, the new order removed all such special provisions. This in effect meant that
the separate Constitution of Jammu and Kashmir stood abrogated. The President issued the order with the "concurrence of the
Government of State of Jammu and Kashmir", which presumably meant the Governor appointed by the Union government.
However, according to Article 370, the Governor must be advised by the Council of Ministers of the State or the Constituent
Assembly of the State, neither of which was operative at the time of the presidential order.[7][62]
The presidential order also added new "interpretations" to the Article 367 of the Indian Constitution. By the new interpretation,
the phrase "[Governor of the State] acting on the advice of the Council of Ministers of the State for the time being in office" is to
be understood simply as the governor of the state. All references to the State Government shall mean the Governor. The reference
to the "Constituent Assembly" had also been amended to mean the "Legislative Assembly of the State".[7] See here for the
complete relevant text.
Home Minister Amit Shah also moved a resolution recommending that the president issue an order rendering all clauses of
Article 370 inoperative.[63][7] On 6 August 2019, the president issued an order (C.O. 273) that did so and replaced the extant text
of Article 370 with:[64]
370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions,
shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or
article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and
Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or
usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged
under article 363 or otherwise.
Change of status of Jammu and Kashmir
On 5 August 2019, the Home Minister Amit Shah introduced a bill in the Rajya Sabha to convert Jammu and Kashmir's status of
a state to two separate union territories, namely Jammu and Kashmir, and Ladakh. The union territory of Jammu and Kashmir is
proposed to have a legislature under the bill whereas the union territory of Ladakh is proposed to not have one.[7][65] By the end
of the day, the bill was passed by Rajya Sabha with 125 votes in its favour.[66]
See also
Article 35A of Constitution of India
Kashmir conflict
2014 Jammu and Kashmir Legislative Assembly election
Constitution of Jammu and Kashmir
1974 Indira–Sheikh accord
Article 356
PART XXI of Indian constitution
Instrument of Accession (Jammu and Kashmir)
Article 370 text from wikisource
Notes
a. Article 238 was repealed by the 7th Amendment in 1956.
b. The explanation originally read, "For the purpose of this article, the Government of the State means the person
for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of
the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of
March, 1948;" This was changed via Ministry of Law order No. C.O. dated 15 November 1952 stating, "In
exercise of the powers conferred by Article 370 the President, on the recommendation of the Constituent
Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day of November, 1952, the said
Article 370 shall be operative with the modification that for the Explanation in Cl. (1) thereof, the following
explanation is substituted namely...[Explanation follows]"
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External links
"Full text of the article" (https://web.archive.org/web/20130708114220/http://lawmin.nic.in/coi/PARTXXI.pdf)
(PDF). Archived from the original (http://lawmin.nic.in/coi/PARTXXI.pdf) (PDF) on 8 July 2013. Retrieved 30 May
2006. (387 KB)
"Full text of Constitution of Jammu and Kashmir" (http://jklegislativeassembly.nic.in/Costitution_of_J&K.pdf)
(PDF).
"The Constitution (Application to Jammu and Kashmir) Order, 1950" (http://jklaw.nic.in/jk1950order.pdf) (PDF).
Government of Jammu and Kashmir. Retrieved 11 May 2017.
"The Constitution (Application to Jammu and Kashmir) Order, 1954" (http://jklaw.nic.in/constitution_jk.pdf) (PDF).
Government of Jammu and Kashmir. Retrieved 11 May 2017.
"The Constitution (Application to Jammu and Kashmir) Order, 2019 c.o. 272" (http://egazette.nic.in/WriteReadDat
a/2019/210049.pdf) (PDF). Government of India. Retrieved 5 August 2019.
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