The document discusses Article 370 of the Indian Constitution which grants special autonomous status to the state of Jammu and Kashmir. It provides 3 key points: 1) Article 370 allows Jammu and Kashmir to have its own constitution and limits the legislative power of the Indian Parliament in the state. It grants Jammu and Kashmir autonomy over all matters except defense, foreign affairs and communications. 2) The article also led to the enactment of Article 35A which empowers the Jammu and Kashmir legislature to define "permanent residents" of the state and provide them special rights and privileges related to employment, property ownership and scholarships. 3) While Article 370 grants special status, the Supreme Court has

1. Bharati Vidhya Peeth Deemed University
New Law College,pune
Constitutional law I
Research Paper
Submitted by: Rahul Gaur
Roll no:-b-09
Class:-BBA LLB
Year:-2nd Year
Submitted to:- Ms Bhawna

2. Chapter-1
Introduction
Article 370 of Indian constitution gives special powers and reliefs to the
state of J&K. “This is because of certain commitments made by the
government of India to the rulers of J&K at the time of its accessionto
India.”1
J&K became part of India after the commencement of the constitution of
India and is made the part of India under art 2 and 3 of Indian constitution.
The state of J&K is an integral part of India and also follows the Indian
constitution but J&K has its own constitution known as constitution of J&K
and it came in power from 7th November 1956 and this constitution is
independent from Indian constitution. J&K follows some laws of India but
to make them applicable in J&K they first has to be passed bythe
constituent assembly of J&K as it is specifically mentioned in art370. Some
laws made applicable by the help of same method are:
1. All India Service Act
2. Border Security Force Act
3. Income Tax Act
4. The Central Law 1956 & 1968 etc….
Though not all the Indian laws are applicable in J&K like IPC, CRPC,
EVIDENCE Act etc then also the SP is apex court. As it has keep this thing
mind and with it they judge the cases as per the laws applicable to J&K and
also the SC has all the powers to decide all the matters related to J&K and it
can also laid down the precedents which the state has to follow.
As all the art of Indian constitution can be amended or dissolved or remove
other than art in part 3 of the constitution. The art 370 can also be dissolved
by the president of India on the recommendation made to him by the
constituent assembly as given under clause 3 of the art 370.

3. 1.J.N.Pandey, the constitutional law of India, page no-73, published by
central law agency, Allahabad law agency, Allahabad, 2012, 9th edition.
President also has different function as in order to pass orders related to the
state as mentioned under art 370 and all the other functions of president
mentioned in other art are not applicable to J&K as it is not included in the
definition of state as given under art 252.
Though the J&K has its own constitution and constituent assembly it is not
superior to Indian constitution and parliament as also stated the same by the
SC in latest judgment laid by the court.
Research Methodology
In this study, the drafting and research is based on the data available in the
constitution of India, constitution of J&K and judgments laid down by hc of
J&K & sc of India. As to indicate the provisions, imp and needs for art 370.
Aims and Objectives
The researcher aimed at analyzing the laws and power given to J&K under
art 370. Hence, we shall be going to the basics of art related to art 370 and
other laws related to it and also to the need to dissolve art 370 by order of
president of India on the recommendation of constituent assembly.
Main Objectives are:
 To study the various aspects of art 370.
 View point of judiciary related to art 370.
 To analyze & find out the ways to dissolve art 370.
Research Questions
1. Is art 370 weakness the powers of Indian parliament to make
laws for state of J&K
2. Is it right in today situation as to continue the applicability
of art 370
3. Can Indian govt dissolve the art 370

4. 4. Powers given to state of J&K under art 370 beneficial for
Indian or not
Hypothesis
This study will prove show the formation and reasons for formation of art
370. It will also show the extra privileges given to the state of J&K under art
370 and also the powers of president. It will also prove lack of willingness or
power or will of the Indian govt to dissolve art 370.
Scope of Research
In this study, we shall be primarily focusing upon the different provisions off
art 370 such as constitution of India and constitution of J&K.
Significance of Research
Through this study, light shall be thrown on the emergence and special
powers given to J&K under art 370 and also to the other parts of Indian
constitution.
Literature Review
Article refered:-
by Utkarsh Anand, The Indian Express, New delhi, December 17, 2016,
9:49am,http://www.google.co.in/amp/indianexpress.com/article/india/sc-
rejects-hc-ruling-no-sovereignity-for-jk-outside-constitution-of-
india4431380-/little
books refered:-
J.N.Pandey, the constitutional law of India, page no-73, published by central
law agency, Allahabad law agency, Allahabad, 2012, 9th edition.
Chapter-2
Text
Temporary arrangements concerning the state of Jammu and Kashmir

5. (1) Notwithstanding the provisions of this Constitution,
(A) Article 238 does not apply to the State of Jammu and Kashmir; [TO]
(B) Parliament's power to make laws of that State is limited to:
(I) of the Union List and the Competitive List which, in consultation with
the Government of the State, are declared by the President to correspond to
the matters specified in the AccessionMembership Instrument from the
State to the Dominion of India As regards Issues for which the Federal
Legislative Assembly may legislate for that State; is
(Ii) the other questions in those lists, because, with the agreement of the
Government of the State, the President may specify by order.
(C) THE PROVISIONS OF ARTICLE 1 AND THIS ARTICLE SHALL
APPLY TO THIS STATE;
D) The other provisions of this Constitution shall apply in relation to that
State subject to exceptions and amendments as the President may by decree
specify:
Provided that no order referring to what is specified in the State Membership
Instrument under subparagraph (i) (b) unless, in consultation with the
Government of the State, it refers to the not being issued:
Provided, moreover, that no order refers to matters other than those
mentioned in the last except clause will be released by the government
agreement.
(2) If the State Government's competition (ii) of paragraph (b) of paragraph
(1) or the second provision of clause (d) of that clause refers, constituting
constitutional purposes The constitution of the constiatution of the state is
called to Assembly for the decision that adopts the same.
(3) By way of derogation from the provisions of the preceding provisions of
this Article, the President may, by means of publication, declare that this
Article shall be unusable or operate with exceptions and modifications and
the specified date:
Provided that the recommendation of the Constituent State referred to in
paragraph (2) refers, the chairman prior to issuing such notification is
necessary.
Chapter- 3
Reasons for J&K becoming part of India

6. J&K was originally a princely state separate from both India and Pakistan. It
has its own identity and sovereign from others. In J&K at that time there was
the rule of raja Hari singh. Raja Hari singh don’tlike Indian congress as it
takes away all the powers he enjoy as a king & he will become as same as
others. So he wanted a separate a country and he also needs military and
strategic help from England. But after the indecency the king was just for
name but the real controlwas in the hands of Sheikh Abdukah of national
congrees. As he enjoys the privilege of support of bothkashmiri people and
national Indian congress. He want J&K to be the part of India but it was not
possible as the accessionletter signed by the king he failed to do so. After
few time the voices start raising from the tribes. They were now supported
by Pakistan and all the military help was given to the tribes. As they want it
to be the parts of Pakistan and also the main reasons was that they want J&K
to be a Muslim state which was only possible under the rule of Pakistan.
Then on 20 October1947, the thousand tribal men with the help of Pakistani
military start capturing J&K. and they were just 1 day away from the
Srinagar which was at that time the place of living of king and also the
capital of J&K. they also killed all the national frontiers of J&K. And after
watching all this situation he signed raja Hari singh came to India for help.
But India refuses to help unless they were agree to come and accept J&K as
the part of India. So in extreme situation he signed the agreement and J&K
became part of India. He has to acceptit as India was ready to give extra
powers and privileges to J&K.
Chapter-4
Special Powers Given to J&K under art 370
At the time when J&K was becoming the part of India during the rule of
Raja Hari singh the Indian govt promised certain temporary reliefs and
provisions to the state. Though it was opposed byDR B.R.Ambedar then
also the Indian govt gives suchpower to them which are laid down in art 370
of Indian constitution.
The powers and reliefs given to the state of J&K are:-
 Provisions given under art 238 shall not be apply to the state of J&K.

7.  The J&K has its own flag and constitution.
 The citizens of J&K have their own identity as a kashmiri other than
of J&K.
 The power of Indian parliament to make laws for J&K are limited to:
1. Matters related to concurrent and union list with consult of the
govt of state, declared by the president.
2. Matters in which the president has the power to pass order with the
consult of constitutional assembly.
 Only the provisions of art 1,370 and 35A are applicable to the state.
 The parliament of India cannot make laws related to matters of J&K
without the consent of state govt.
Chapter-5
Constitution Of J&K
The preamble of this constitution says “we, the people of the state of
jammu and Kashmir.” This means that they are pledging to the state and
not the country i.e. India.
Though art 3 of the J&K constitution says that J&K is the integral part
of India. The same constitution also have separate provisions for
everything in matters of the state such as pay of judges, allotment of
public officials, etc. it also has separate laws made under it other than
Indian laws such as Ranver penal code, etc. It also discriminate of the
citizens of J&K and Indian citizens as under art 35A of the constitution.
Art 2 of the J&K constitution also recognizes that Indian constitution
above the constitution of J&K.
Chapter-6
Art-35A
"Save laws about permanent residents and their rights." Notwithstanding
what is contained in this Constitution, no law in force in the State of Jammu
and Kashmir and no law thereafter issued by the state legislature: [2]

8. (A) define the classes of persons who are or will be permanent residents of
the State of Jammu and Kashmir; or
(B) grant such permanent residents special rights and privileges or impose
restrictions on other persons for reasons,
(I) employment under the government of the State;
(Ii) the acquisition of real estate in the State;
(Ii) settlement in the State; or
Iv) the right to scholarships and other forms of assistance that the State
Government may provide,
2 The constitution(application to Jammu and Kashmir) order,1954
It is void because it is inconsistent or suppresses orremoves the rights
granted to other citizens of India by any provision of this part. "
Basically this art is an art which empowers the state of J&K state legislature
to define permanent residents and non residents. It provides extra rights and
privileges to the residence of the state of J&K. for example as the report
issued by the central finance ministry the central govt has send only 4,000
rupees on up citizen per year and to a citizen of J&K the govt has spend
12,000 rupees per person.
This clause is added through the order passed by the president in 1954.
Chapter-7
Other art of Indian constitution giving privileges to J&K
Art 238
Text:- Applicability of provisions of part VI to the states in part B f
the first schedule
[Rep by the constitution seventh amendment act 1956,sec 29 and
sch.(wef 1-11-1956)]
Art-152
Text:-definition

9. In this part, unless the context otherwise requires, the expression
“state”(does not include the state of J&K)
The art 152 as stated above does not include the state of J&K as it tells
the states which are included in part VI of the Indian constitution. As
this part defines powers and responsibilities of the state and govt to the
country. The J&K is separated from it as per the special status of
sovereignty(i.e. independent from others and superior from within)
given to it in the Indian constitution under art 370. But it has to come
under the constitution of India as mentioned under art of the J&
constitution.
The art 238 also provide the same as it is applicable to part VI which
states the states under first schedule of the Indian constitution. It is
beneficial for J&K as it also include art 152 and art 152 specifically
exceeds J&K[i.e. “does notinclude the state of J&K] in the definition of
state under this art. It is repealed in 1956 after the states "Part B" are
eliminated and included as states after the seventh constitutional
amendment of 1956. States of Part B are old states or states of alliance
governed by "Raj Pramukhs". These include 9 states that are Hyderabad,
Jammu and Kashmir, Madhya Bharat, Mysore, Patiala, and the Eastern
Oriental Punjab Union (PEPSU), Rajasthan, Saurashtra, Travancore-
Cochin and Vindhya Pradesh. Jammu and Kashmir, even if a Part B
State has obtained a special status within the meaning of Article 370. In
general terms, then, Article 238 concerned the provisions of the
administration in Part B States. In particular, it deals in particular with
the application of the provisions of Part VI of the Constitution, which
includes the governor, state executives.
Chapter-8
Presidential powers
The president of India is the head of the state of J&K. he has the power
given under art 370 of the constitution to pass orders in relation to the
state of J&K. he has also passed many orders such as:-

10.  The constitution of the state of J&K comes to operation on 7th
November.
 The HC of J&K shall shall have all the powers enjoyed by the
other HC in India except that it cannot issue writ for “any other
purpose.”
 The jurisdiction of the SC extends to the state of J&K.
 The parliament can make all laws related to the union and
concurrent list.
 The provisions of emergency under art 352 is applicable to J&K.
 The presidential rule under art 360 is applicable except in matters
of financial emergency.
Chapter-9
Supreme Court view point on art 370
“In the appeal filled by SBI against the judgment passed by high
court of J&K. the case filled in the J&K HC was questioning the
Financial Assets and Enforcement of Security Interest Act,2002. In
the judgment as per the bench of SC the view of J&K HC of J&
being sovereign and constitution of J&K above constitution of India
was totally wrong. The court says that, “J&K has no vestige of
sovereignty outside the constitution of India.” Justice Kurian Joseph
and Rohinton Nairman also rejected the J&K HC view that the J&K
constitution was equal to the constitution of India. “it is clear that the
state of J&K has no vestige of sovereignty outside the constitution of
India and its own constitution , which is subordinate to the
constitution of India and also by the constitution of J&K”, the bench
also said, referring to the preamble of the constitution of J&K,1957.
In the same the court also referred to art 3 of the constitution of J&K

11. which declares “that J&K is the integral part of India”, they also said
that the people of J&K are first citizens of India and then citizens of
J&K.
Also in other petition filed in the SC the SC said that the constitution
of J& is unconstitutional and given directions to the centre to take
appropriate measures.”3
Chapter-10
Procedure to remove art 370
As per power given to the parliament under art 368. Parliament has
the power to amend any art in the constitution other than “basic
structure of the constitution” remains untouched. And the SC also by
judicial review and judicial precedent can make any law. With the
help of the rule, the parliament may amend the art 370 as it is a
temporary status. It should also be noted that the art 370 clearly
stated that the provision is of a temporary status and not permanent.
It should also be keep in mind that in art 370 it is clearly stated as:-
 It can be done by constitutional amendment bill which would
be passed by both houses of the parliament with 2/3 majority.
 It would have to be signed by the president.
 Also the same bill has to be passed by the constitutional
assembly of J&K by 2/3 majority.
It is also stated in clause 3 of the art 370 that the president can remove art
370 on the recommendation of constitutional assembly.
Here constituent assembly can be relate with parliament.
Chapter-11
Conclusion
It has been noticed from the above research done that due to instability
caused in . J&K during the rule of Raja Hari Singh and due to fear of losing
his lands he come to India for help and in return of help India wants it to be

12. part of India. And due to the situations prevailing the Hari Singh has to
acceptit and finally now J&K became part of Inida. Indian govt also
promised some special rights and privileges to the Raja so due to that
commitment made to him art 370 was in acted in the Indian constitution.
The special powers given to them are for their benefit as it seems to be
appropriate at that point of time and therefore it was said to be temporary.
As they want to get the confidence of people of J&K and also to bring them
forward from the backward class which they were living in.
The president also has the certain power in doing so. As he has given power
to pass order under art 370 of the constitution. The president passes orders
such as 35A, order for commencement of constitution of J&, etc and many
more.
3 by Utkarsh Anand, The Indian Express, New delhi, December 17, 2016,
9:49am,http://www.google.co.in/amp/indianexpress.com/article/india/sc-
rejects-hc-ruling-no-sovereignity-for-jk-outside-constitution-of-
india4431380-/little
The judiciary specially the SC has all the powers to rule in any caseof J&K
as the order passed by the president of India. The SC also has the very
different view point related to art 370 as it has said in a appeal filled by SBI
and in which the court says that for J&K India is first and then other things
are for them.
In end with this study and keeping in mind all the things related to the
situation in 1950’s the art 370 was accurate at that time but in current
situation it has to be review.