Government of India has withdrawn the special status of J&K by invoking the Article 370 which had been seen as firewalling the autonomy of Jammu and Kashmir.   The Constitution (Application to Jammu and Kashmir) Order, 2019, has extended all provisions of the Indian Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself.

1. Article 370: Explained

2. Government of India has withdrawn the special status of J&K by invoking
the Article 370 which had been seen as firewalling the autonomy of Jammu
and Kashmir.
● The Constitution (Application to Jammu and Kashmir) Order, 2019,
has extended all provisions of the Indian Constitution to Jammu and
Kashmir, including the chapter on Fundamental Rights.
● This is the first time that Article 370 has been used to amend Article
367 (which deals with Interpretation) in respect of Jammu and Kashmir,
and this amendment has then been used to amend Article 370 itself.

3. • The order issued by President in exercise of the powers conferred
by Clause (1) of Article 370 of the Constitution”, has not
abrogated Article 370.
• While this provision remains in the statute book, it has been used
to withdraw the special status of Jammu and Kashmir.
• This Presidential Order under Article 370 is a negation of the
constitutional pact that India signed with Maharaja Hari Singh.

5. The Bill provides for reorganisation of the state of Jammu and Kashmir into
the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
• Reorganisation of Jammu and Kashmir: The Bill reorganises the state
of Jammu and Kashmir into: (i) the Union Territory of Jammu and
Kashmir with a legislature, and (ii) the Union Territory of Ladakh
without a legislature.
✓ The Union Territory of Ladakh will comprise Kargil and Leh districts,
and the Union Territory of Jammu and Kashmir will comprise the
remaining territories of the existing state of Jammu and Kashmir.

6. • Lieutenant Governor: The Union Territory of Jammu and
Kashmir will be administered by the President, through an
administrator appointed by him known as the Lieutenant
Governor. The Union Territory of Ladakh will be administered by
the President, through a Lieutenant Governor appointed by him.
• Legislative Assembly of Jammu and Kashmir: The Bill
provides for a Legislative Assembly for the Union Territory of
Jammu and Kashmir. The total number of seats in the Assembly
will be 107.
✓ Of these, 24 seats will remain vacant on account of certain
areas of Jammu and Kashmir being under the occupation of
Pakistan.

7. ✓ Further, seats will be reserved in the Assembly for Scheduled
Castes and Scheduled Tribes in proportion to their population in
the Union Territory of Jammu and Kashmir.
✓ In addition, the Lieutenant Governor may nominate two
members to the Legislative Assembly to give representation to
women, if they are not adequately represented.
✓ The Assembly will have a term of five years, and the Lieutenant
Governor must summon the Assembly at least once in six months.
✓ The Legislative Assembly may make laws for any part of the
Union Territory of Jammu and Kashmir related to: (i) any matters
specified in the State List of the Constitution, except “Police” and

8. “Public Order”, and (ii) any matter in the Concurrent List
applicable to Union Territories.
✓ Further, Parliament will have the power to make laws in relation to
any matter for the Union Territory of Jammu and Kashmir.
• Extent of laws: The Schedule lists 106 central laws that will be
made applicable to Union Territories of Jammu and Kashmir and
Ladakh on a date notified by the central government. These
include the Aadhaar Act, 2016, the Indian Penal Code, 1860, and
the Right to Education Act, 2009. Further, it repeals 153 state
laws of Jammu and Kashmir.

9. Article 3 of the Constitution gives Parliament the power
to amend the Constitution by a simple majority to
change the boundaries of a state, and to form a new
state. But this change requires that such a Bill be first
referred to the concerned state Assembly by the
President for ascertaining its views.

10. • Included in the Constitution on October 17, 1949, it lays down
that only two Articles would apply to J&K: Article 1, which
defines India, and Article 370 itself.
• Article 370 says other provisions of the Constitution can apply to
J&K “subject to such exceptions and modifications as the
President may by order specify”, with the concurrence of the state
government and the endorsement of the J&K Constituent
Assembly.

11. • It restricts Parliament’s legislative powers with respect to J&K.
For extending a central law on subjects included in the Instrument
of Accession (IoA), mere “consultation” with the state government
is needed. But for extending it to other matters, “concurrence” of
the state government is mandatory.
• A number of other states enjoy special status under Article 371,
from 371A to 371I.

12. • The Indian Independence Act, 1947, divided British India, i.e., the
territories under the direct administration of the British, into India and
Pakistan.
• The 580-odd princely states that had signed subsidiary alliances with the
British had their sovereignty restored to them, and were given the
options of remaining independent, joining the Dominion of India, or
joining the Dominion of Pakistan.
• Section 6(a) of the Act said joining either India or Pakistan would have
to be through an Instrument of Accession. States could specify the terms
on which they were joining one of the new dominions.

13. • Technically, therefore, the Instrument of Accession was like a
treaty between two sovereign countries that had decided to
work together.
• Raja Hari Singh had initially decided to remain independent and
sign standstill agreements with India and Pakistan, and Pakistan in
fact signed it.
• But following an invasion from tribesmen and Army men in
plainclothes from Pakistan, he sought the help of India, which in
turn sought the accession of Kashmir to India.

14. • Hari Singh signed the Instrument of Accession on October 26,
1947 and Governor General Lord Mountbatten accepted it on
October 27, 1947.
• The Schedule appended to the Instrument of Accession gave
Parliament the power to legislate in respect of J&K only on
Defence, External Affairs and Communications.

15. • In India’s acceptance of the IoA, Lord Mountbatten stated that “it
is my Government’s wish that as soon as law and order have been
restored in Kashmir and her soil is cleared of the invader, the
question of the State’s accession be settled by a reference to
the people”.
• It has been settled policy of Government of India, which on many
occasions has been stated both by Sardar Patel and Jawaharlal
Nehru, that the Constitution of Jammu and Kashmir is a matter
for determination by the people of the state represented in a
Constituent Assembly convened for the purpose.

16. Part XXI of the Constitution, ‘Temporary, Transitional and Special Provisions’,
includes, apart from Article 370 (Temporary Provisions with respect to the State of
Jammu and Kashmir) Articles 371, 371A, 371B, 371C, 371D, 371E, 371F, 371G,
371H, and 371J, which define special provisions with regard to other states of the
Indian Union.
Like Article 370 (dealing with Jammu and Kashmir), each of these other
constitutional provisions too, is rooted in historical reasons. There is, however, one
important difference between Articles 370 and 371 on the one hand, and Articles
371A-H and 371J on the other.
Articles 370 and 371 have been part of the Constitution from the time of its
commencement on January 26, 1950. Articles 371A-H and 371J, however, were
incorporated into the Constitution by Parliament through amendments under Article
368.

17. • It is the first article of Part XXI of the Constitution. The heading
of this part is ‘Temporary, Transitional and Special Provisions’.
• Article 370 could be interpreted as temporary in the sense that the
J&K Constituent Assembly had a right to modify/delete/retain it; it
decided to retain it. Another interpretation was that accession was
temporary until a plebiscite.

18. • In Sampat Prakash (1969) the SC refused to accept Article 370
as temporary. A five-judge Bench said “Article 370 has never
ceased to be operative”. Thus, it is a permanent provision.
• Delhi High Court in Kumari Vijayalaksmi (2017) rejected a
petition that said Article 370 is temporary and its continuation is a
fraud on the Constitution.
• In the State bank of India vs Santosh Gupta and Others case,
the Supreme Court had ruled that Article 370, though was
intended to be temporary or transitional, has become a
permanent feature of the Constitution for the reasons
mentioned in Article 370(3) and without recommendations of the
State Constituent Assembly, it cannot be abrogated.
•

19. • Article 370(3) permits deletion by a Presidential Order. Such an
order, however, is to be preceded by the concurrence of J&K’s
Constituent Assembly.
• Since such an Assembly was dissolved on January 26, 1957, one
view is it cannot be deleted anymore. But the other view is that it
can be done, but only with the concurrence of the State
Assembly.

20. • Article 370 is not only part of the Constitution but also part of
federalism, which is basic structure. Accordingly, the court has
upheld successive Presidential Orders under Article 370.

21. • Article 35A is a provision incorporated in the Constitution giving
the Jammu and Kashmir Legislature a carte blanche to decide who
all are ‘permanent residents’ of the State and confer on them
special rights and privileges in public sector jobs, acquisition of
property in the State, scholarships and other public aid and
welfare.
• The provision mandates that no act of the legislature coming under
it can be challenged for violating the Constitution or any other law
of the land.

22. • Article 35A was incorporated into the Constitution in 1954 by a
Presidential order issued under Article 370 (1) (d) of the
Constitution on the advice of the Jawaharlal Nehru Cabinet.
– Article 370 (1) (d) allows the President to make certain
“exceptions and modifications” to the Constitution for the
benefit of ‘State subjects’ of Jammu and Kashmir.
• The controversial Constitution (Application to Jammu and
Kashmir) Order of 1954 followed the 1952 Delhi Agreement
entered into between Nehru and the then Prime Minister of Jammu
and Kashmir Sheikh Abdullah, which extended Indian citizenship
to the ‘State subjects’ of Jammu and Kashmir.

23. • So Article 35A was added to the Constitution as a testimony of the
special consideration the Indian government accorded to the
‘permanent residents’ of Jammu and Kashmir.

24. • The parliamentary route of lawmaking was bypassed when the
President incorporated Article 35A into the Constitution. Article
368 (i) of the Constitution empowers only Parliament to amend
the Constitution.
• Article 35 A is against the “very spirit of oneness of India” as it
creates a “class within a class of Indian citizens”.
• It restricts the basic right to property if a native woman marries a
man not holding a permanent resident certificate, her children are
denied a permanent resident certificate, thereby considering them
illegitimate.

25. • Restricting citizens from other States from getting employment or
buying property within Jammu and Kashmir is a violation of
fundamental rights under Articles 14, 19 and 21 of the
Constitution.
Supreme Court Bench, has referred this matter to a three-judge
Bench. The court has indicated that the validity of Articles 35A and
370 may ultimately be decided by a Constitution Bench.

26. • The premise of this special Article emanates from residency laws
issued by the then Maharaja Hari Singh to prevent migration of
people from neighbouring Punjab during the British rule.
• Such restrictions on non-permanent residents to purchase lands are
not unique to Jammu and Kashmir as Himachal Pradesh and
several North Eastern states too have this provision.
• In 2002, the Jammu and Kashmir High Court had struck down
the provision of women losing their permanent resident status
if they married a non-permanent resident.

27. • Article 35A stems from Article 370, and was introduced through a
Presidential Order in 1954.
• New Presidential Order has extended all provisions of the
Constitution to Jammu and Kashmir, Therefore, the discriminatory
provisions under Article 35A are now unconstitutional.

28. • India has used Article 370 at least 45 times to extend provisions of
the Indian Constitution to J&K.
• This is the only way through which, by mere Presidential Orders,
India has almost nullified the effect of J&K’s special status. By the
1954 order, almost the entire Constitution was extended to J&K
including most Constitutional amendments.
• To change provisions for the Governor being elected by the
Assembly, Article 370 was used to convert it into a nominee of the
President.

29. • Ninety-four of 97 entries in the Union List are applicable to J&K;
26 out of 47 items of the Concurrent List have been extended.; 260
of 395 Articles have been extended to the state, besides 7 of 12
Schedules.
• The Centre has used Article 370 even to amend a number of
provisions of J&K’s Constitution, though that power was not
given to the President under Article 370.
• Article 249 (power of Parliament to make laws on State List
entries) was extended to J&K without a resolution by the
Assembly and just by a recommendation of the Governor.

30. • Article 370 has been described as a tunnel through which the
Constitution is applied to J&K.
• Article 370 was an essential facet of India’s federalism because,
like the compact in the United States, it governed the relationship
of the Union with Jammu and Kashmir. The Supreme Court has
held federalism to be part of the basic structure of India’s
Constitution.
• Article 370 was a constitutional recognition of the conditions
mentioned in the Instrument of Accession, and reflected the
contractual rights and obligations of the two parties.

31. • Supreme Court in State of West Bengal v. Union of India (1962)
attached the highest importance to an “agreement or compact
between states” as an essential characteristic of federalism.
• The Supreme Court in SBI v Zaffar Ullah Nehru (2016)
observed that the federal structure of the Constitution is reflected
in Part XXI. The court also said that J&K has a special status,
and that Article 370 was not temporary.

32. According to the Government;
• The two articles of the Constitution, which gives Jammu and
Kashmir a special status and does not allow all laws of India to be
applicable to the state, have hindered development and has bred
corruption.
• Development is being stalled in the state because of Article 370,
for example real estate prices haven’t moved in sync with national
average.
• Healthcare is crippling in Jammu and Kashmir as no private
hospital could be set up due to restrictions imposed by Article
35A.

33. • It is reminiscent of the Reichstag or Chinese constitutional
ideology that sees federalism as an obstacle to a strong state
and homogenous culture.
• This act potentially sets the precedent for invalidating
constitutional promises of which many are asymmetric
federalism arrangements including Nagaland.
• Its implication is that the government can unilaterally declare
any existing state to be a Union Territory. This is a
constitutional first.

34. • Majoritarianism, the power of the vote will no longer have the
safety valves that allowed inclusion. The abdication of the
Opposition will only deepen the sense of alienation.
• Established Procedure of legislation and the role of parliament as a
deliberative body has been greatly eroded through the route
adopted to pass the legislation.
• People of J&K (permanent residents) have been considered as
passive entities in the matter pertaining to their concerns and
interests.

35. ● The mechanism that the government used to railroad its rigid
ideological position on Jammu and Kashmir through the Rajya
Sabha was both hasty and stealthy. This move could strain
India’s social fabric not only in its impact on Jammu and
Kashmir but also in the portents it holds for federalism,
parliamentary democracy and diversity.
● It has undermined parliamentary authority, also passing of
legislation as far-reaching as dismembering a State without prior
consultations has set a new low.
● Under Article 3 of the Constitution, the President seeks the views

36. of the legislature of the States concerned, even if concurrence is not
mandatory. In the present scenario, J&K has been represented by an
unelected Governor appointed by the Centre, while Parliament has
ventured to ratify the conversion of a State into two Union
Territories without any recommendation from the State.
• Possible threat from the emergence of militancy and insurgency
could jeopardise the region and the entire Indian state especially if
viewed with respect to the emergence of ISIS in the region and
the unfolding of situations in the Afghanistan.

37. • The founding fathers of the Republic favoured a strong Centre, but
they were also prudent in seeking the route of persuasion and
accommodation towards linguistic and religious minorities in the
interest of national integration. Babaseheb Ambedkar’s fear, and
his warning, that mere political democracy is not enough, can be
seen coming true.

38. It could include the argument that the conversion of Jammu and
Kashmir into a Union Territory is in violation of Article 3, as the Bill
was not referred by the President to the state Assembly.
Also,
• Can the Constituent Assembly mean Legislative Assembly?
• Are the Governor and the state government one and the same?
• Whether Article 370 was part of the basic structure?

39. The constitutional relevance of Instrument of Accession will also
have to be examined by the court along with the use of Article 367 in
amending Article 370.
• Certain types of restrictions on purchase of land are also in
place in several other states, including some in the Northeast and
Himachal Pradesh.
• Domicile-based reservation in admissions and even jobs is
followed in a number of states, including under Article 371D for
undivided Andhra Pradesh.

40. • Article 3 of the Jammu and Kashmir constitution itself declares
the state to be an integral part of India.
• In the preamble of the Jammu and Kashmir constitution, not only
is there no claim to sovereignty like in the Constitution of India,
there is, rather, a categorical acknowledgment that the object of
the Jammu and Kashmir constitution is “to further define the
existing relationship of the state with the Union of India as its
integral part thereof”.

41. Integration thus, was already complete. Article 370 merely gave
some autonomy to Jammu and Kashmir, which has now been
withdrawn.