Article 370: Historical Context, Key

Provisions, and Its Abrogation's Aftermath

in 2024
Updated by Seersha Chaudhuri on July 17, 2024, 20:00 IST

Let us go back to the year 2019, month of August. News channels and journalists put in all
their efforts to cover the news of a historical and mammoth decision taken by the Prime
Minister Narendra Modi and Home Minister Amit Shah. A decision that could bring forth the
long awaited union or break the last thread that connected a free nation. The government
abrogated Article 370. They used a Presidential Order to supersede the 1954 Order and
subsequently passed a resolution in Parliament to reorganise the state into two Union
Territories—Jammu & Kashmir and Ladakh. Law students and practitioners in India had their
inboxes flooded with the same question “ What is Article 370 and what is the
significance?”. Sure, by now a segment of our population is aware of what Article 370 is.
But we are here to revisit every detail once again (in case someone still has questions) and to
add more.
Historical Context and Enactment

Article 370 of the Indian Constitution granted special autonomy to Jammu and Kashmir,
inserted on October 17, 1949, as a temporary measure. Its roots trace back to the
Instrument of Accession signed by Maharaja Hari Singh on October 26, 1947, which
included conditions for autonomy over internal matters except defence, communications,
and foreign affairs. Dr. B.R. Ambedkar, the principal architect of the Indian Constitution,
was reportedly reluctant about Article 370, but it was eventually drafted by Gopalaswami
Ayyangar.

Key Provisions and Autonomy Granted to Jammu and Kashmir

 ● Autonomy: Jammu and Kashmir had its own Constitution adopted on January 26,
1957, with its legislative assembly empowered to make laws on all matters except
defence, foreign affairs, finance, and communications.
● Concurrence: Indian laws did not automatically apply to Jammu and Kashmir unless
the state government concurred.
● Permanent Residents: Article 35A allowed the state legislature to define permanent
residents and accord them special rights and privileges.
● Special Status: Citizens of Jammu and Kashmir enjoyed dual citizenship, and both
the Indian and state flags were flown on government buildings.

The Article 370 vested individualistic power to the state of Jammu and Kashmir - they were
a part of the country of India with a separate identity.

Presidential Orders and Amendments

Several Presidential Orders over the years extended various Indian Constitution provisions to Jammu
and Kashmir, diluting its autonomy. The most significant was the Presidential Order of 1954, which
introduced Article 35A. Between 1954 and 2019, over 45 Presidential Orders applied various Indian
laws to Jammu and Kashmir.

Impact of Abrogation on August 5, 2019

The Indian government's decision to abrogate Article 370 was driven by multiple
considerations:
● Political Integration: To fully integrate Jammu and Kashmir with the rest of India.
● Economic Development: To promote economic development by opening the region
for business and investment opportunities.
● National Security: To address issues related to terrorism and insurgency.
● Uniformity of Laws: To ensure uniform application of Indian laws across the entire
country.
● Administrative Efficiency: To improve governance by reorganising the state into two
Union Territories—Jammu & Kashmir and Ladakh.
● Social Justice: To address social justice issues, including rights for women and
marginalised communities.
The move was controversial and faced significant opposition from various political groups
within Jammu and Kashmir and from neighbouring Pakistan, which has a longstanding
dispute with India over the region. Critics argued that the decision was made without
adequate consultation with the people of Jammu and Kashmir and that it would lead to
increased tensions and unrest.

Legal and Constitutional Implications

The abrogation of Article 370 raised several legal and constitutional questions:
 ● Procedure: Critics argued that the manner in which Article 370 was abrogated
bypassed constitutional requirements. Article 370(3) states that it can only be
abrogated with the concurrence of the Constituent Assembly of Jammu and Kashmir,
which ceased to exist in 1957. The government argued that the state legislative
assembly's powers had been vested in the Governor, who gave his concurrence.
● Article 35A: The abrogation also nullified Article 35A, which had provided special
rights to the permanent residents of Jammu and Kashmir. This led to concerns over
the dilution of cultural and demographic identity.

Rights and Duties of Citizens Post-Abrogation

Post-abrogation, the rights and duties of citizens in Jammu and Kashmir saw significant
changes:
1. Equal Rights: All provisions of the Indian Constitution now applied uniformly to
Jammu and Kashmir. This meant that residents of the region could now enjoy the same
fundamental rights as other Indian citizens.
2. Property and Employment: Non-residents of Jammu and Kashmir were now eligible
to purchase property and apply for government jobs in the region, a privilege that was
previously restricted to permanent residents.
3. Domicile Rules:

● Under these rules, anyone within the following criteria can apply for a domicile
certificate:
- Who has resided in J&K for 15 years
- Has studied for seven years and appeared in class 10 or 12 examinations in an
educational institution in the region
- Children of central government officials
- All-India services officers, officials of PSUs, and autonomous bodies of the
central government who have served in J&K for a total period of 10 years
- Migrants registered by the Relief and Rehabilitation Commissioner.
● The domicile certificate is a crucial document for obtaining government jobs and
educational opportunities, which were previously reserved only for permanent
residents under Article 370.

Judicial Review and Supreme Court Rulings

The abrogation of Article 370 has been challenged in the Supreme Court of India, with
multiple petitions arguing that the procedure followed was unconstitutional. As of now, the
matter remains pending before the court. Key legal questions include the interpretation of
Article 370(3) and the extent of the President's powers in altering the state's status.

Judicial Review
Following the abrogation, several petitions were filed in the Supreme Court of India
challenging the constitutionality of the government's decision. The primary arguments in
these petitions included:

● Violation of Constitutional Provisions: Petitioners argued that the abrogation was

unconstitutional as it bypassed the requirement of concurrence from the state
legislature of Jammu and Kashmir, which was dissolved at the time.
● Question of Federalism: The move was seen as undermining the federal structure of
India by reducing a state to Union Territories without adequate representation.
● Human Rights Concerns: Petitioners highlighted the human rights implications,
including restrictions on movement, communication blackouts, and detention of
political leaders in Jammu and Kashmir.
 Supreme Court Rulings
Several petitions were filed challenging the constitutional validity of the abrogation. The
Supreme Court of India constituted a five-judge bench to hear these petitions. The key issues
addressed included:

● Constituent Assembly vs. Legislative Assembly: Petitioners argued that the

Presidential Order of August 2019 was unconstitutional as it required the concurrence
of the Constituent Assembly of Jammu and Kashmir, which ceased to exist in 1957.
However, the government contended that the powers of the Constituent Assembly
were now vested in the state's Legislative Assembly, which was dissolved and thus
the Governor's consent was sufficient.
● Federal Structure Violation: Petitioners claimed that the abrogation disrupted the
federal structure of India by altering the terms of accession of Jammu and Kashmir.
The respondents argued that the measure was within the constitutional framework and
necessary for national integration.
● Fundamental Rights: Concerns were raised about potential human rights violations
and the imposition of restrictions on freedoms in the region. The court examined
whether the abrogation infringed upon fundamental rights guaranteed under the
Constitution.

Supreme Court's Verdict

In a historic ruling in July 2023, the Supreme Court upheld the abrogation of Article 370. The
key points of the judgement were:

1. Presidential Order Validity: The court held that the Presidential Order of August 5,
2019, was constitutionally valid. It reasoned that since the state's Constituent
Assembly no longer existed, the Legislative Assembly (or in its absence, the
Governor) could provide the requisite concurrence.
2. Parliament's Authority: The bench affirmed that Parliament had the authority to
reorganise the state under Article 3 of the Constitution. The bifurcation of Jammu and
Kashmir into two Union Territories was thus within the ambit of legislative
competence.
3. Federal Structure: The court observed that while the abrogation altered the
relationship between Jammu and Kashmir and the Union, it did not violate the federal
principles as the Constitution provided mechanisms for such changes.
4. Fundamental Rights: The judgement acknowledged the concerns related to human
rights but maintained that these issues could be addressed through appropriate legal
channels without invalidating the abrogation.

On May 1, 2024 the Supreme Court dismissed review petitions challenging its 2023 verdict
upholding the abrogation of Article 370. The Court reaffirmed that the decision to revoke
Jammu and Kashmir's special status was constitutionally valid. It rejected arguments that the
abrogation violated procedural norms or that Article 370 had become a permanent feature.
The Court emphasised that the integration of Jammu and Kashmir with India aimed to
promote national unity and equal rights under the Constitution.

Repercussions

Political Reactions: The decision received mixed reactions, hailed by many as a move
towards national integration but criticised by others as an attack on the region's autonomy.
Social Impact: The abrogation led to a year-long lockdown, curfews, and a communications
blackout, severely affecting education, healthcare, and daily life. The tourism industry, vital
to the local economy, was significantly impacted.
Immigration Patterns and Demographic Shifts:
Internal Migration: Increased internal migration to Jammu and Kashmir driven by
opportunities in government jobs, real estate, and business.
International Implications: The regions of Jammu and Kashmir and Ladakh share borders
with Pakistan and China, influencing immigration policies and border security measures.
Refugee and Asylum Seekers:The geopolitical situation has implications for refugees and
asylum seekers, particularly those from neighbouring regions affected by conflict. The
policies towards such individuals are shaped by both security concerns and humanitarian
considerations.

Where does Jammu and Kashmir stand today after the constitutional development?
In Family Man Season 1, there was a short clip that puts forward a perspective regarding the
standing of Jammu and Kashmir today after the constitutional development. Here is an
excerpt from an episode (translated in English from Hindi):
Party 1 :
Person 1 : How are things over here nowadays?
Person 2 : Can’t you see? It feels like a bird has been caged.

Party 2:
Person 1: It’s all great here! We call the shots here.
Person 2: (with sarcasm) Someone told me the number of tourists here has shot up. I can see
the tourists for sure, but in uniform.

Like two sides of a coin, there are two debates when it comes to the current status of the state
in concern.
On one hand, here are certain impacts which are still in question:
Economic Impact: Despite promises of economic development, there are concerns about the
actual economic impact on the ground, especially regarding unemployment rates and
economic disparities in the state concerned - Jammu and Kashmir.
Legal Ambiguities: There remain legal ambiguities and challenges in implementing new
laws and regulations post-abrogation, which could affect governance and administration in
the region.
Social Division: The abrogation has exacerbated social divisions within Jammu and Kashmir,
particularly between different ethnic and religious communities, leading to heightened
tensions and polarisation.
Ethnic and Religious Tensions: There has been a noticeable increase in tensions between
different ethnic and religious communities in Jammu and Kashmir. Polarisation has been
fueled by political rhetoric, demographic changes, and perceptions of unequal treatment
under new policies.
Security Concerns: Social divisions have also been linked to security concerns, with
incidents of communal violence and targeted attacks reported in certain areas. These incidents
have heightened anxieties and deepened mistrust among communities.
Political Alienation: Some segments of the population feel politically alienated following the
abrogation, viewing it as a move imposed without adequate consultation or consideration of
local aspirations. This sentiment has strained relations between the central government and
local leaders.

On the other hand, there have been notable developments for the state of Jammu and Kashmir
that deserve mention. Here are some key points:
Industrial Investment: There's been an increase in industrial investment, indicating
economic growth and job creation in the region.
Railway Connectivity: Improved railway connectivity has facilitated easier movement of
people and goods, enhancing regional integration and economic activities.
Tourism Boost: The region has seen a significant uptick in tourism, showcasing its potential
as a tourist destination and boosting local economies reliant on tourism.
Infrastructure Development: There has been substantial infrastructure development,
including roads and other amenities, improving living standards and connectivity.
Government Initiatives: Various government initiatives have been rolled out to promote
development and welfare in the region.

These changes indicate efforts to integrate Jammu and Kashmir more closely with the rest of
India economically and socially, aiming to bring long-term stability and prosperity to the
region.

Conclusion
The abrogation of Article 370 marks a watershed moment in India's constitutional and
political history. It has transformed the legal status and governance of Jammu and Kashmir,
leading to far-reaching implications. While the move aims to bring about integration and
development, it has also sparked debates over constitutional propriety, human rights, and the
future of the region's identity. The true impact of this decision will unfold over time as the
region navigates the complexities of this new chapter in its history.

FAQs
Frequently Asked Questions (FAQs) about Article 370

1. What is Article 370?

- Article 370 of the Indian Constitution granted special autonomy to the region of Jammu
and Kashmir. It allowed the state to have its own Constitution and limited the Indian
Parliament's legislative powers in the state.

2. Why was Article 370 abrogated in 2019?

- The Indian government abrogated Article 370 to promote political integration, economic
development, national security, uniformity of laws, and administrative efficiency.

3. How was Article 370 abrogated?

- The abrogation was carried out through a Presidential Order and a resolution passed in
Parliament, which superseded the 1954 Order and reorganised the state into two Union
Territories—Jammu & Kashmir and Ladakh.

4. What was the Supreme Court's verdict on the abrogation?

 - In July 2023, the Supreme Court upheld the abrogation, stating that the Presidential Order
was constitutionally valid and that Parliament had the authority to reorganise the state under
Article 3 of the Constitution.

5. What is the current status of Jammu and Kashmir after the constitutional changes?
- The region has seen mixed outcomes, with some economic development and integration
benefits but also ongoing legal ambiguities, social divisions, and security concerns.

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