This document summarizes key aspects of Article 370 of the Indian constitution regarding the state of Jammu and Kashmir. It discusses the historical context for Article 370, including the accession of Jammu and Kashmir to India in 1947. It outlines the main provisions and special features of Article 370, such as Jammu and Kashmir having its own constitution and the limited applicability of parts of the Indian constitution to the state. The document also discusses the text of Article 370 and the autonomy it provides Jammu and Kashmir in certain matters compared to other Indian states.

1. ARTICLE 370
A diplomatic attempt
Amaresh Patel
justhere4nation@gmail.com

2. Article 370 is amendable
No doubt that Article 370 is as contradictory as it can rise
war between nations, it is also as simple as to say
Article 370 is temporary provision.
That means, it can be amended anytime if parliament has
approval of president of India.
Although, there is no article in constitution of India which
gives power to parliament to amend this, also, there is no
article in constitution of India which prohibits parliament
from amending this.
‘term – Temporary provision is itself enough to mention that
this article is amendable.’

3. ARTICLE 370 - Temporary provisions with respect to the State of Jammu and
Kashmir.
Which read as under,
1. Notwithstanding anything in this constitution:
(a) The provisions of Article 238 shall not apply in relation to the State of Jammu & Kashmir.
(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 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 Govt of the State, the President may,
by order specify.
1. Explanation. For the purposes of this Article, the Govt of the State means the person for the time being
recognized by the President as Maharaja of Jammu & Kashmir acting on the advice of the council of Ministers
for the time being in office under the Maharaja’s Proclamation dated the fifty day of March 1948.
(c) The provisions of Article (1) and of this Article shall apply in relation to this 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 related to the matters specified in the Instrument of Accession of the State
referred to in paragraph (i) of sub clause (1) shall be issued except in consultation with the govt of the State.
Provided further that no such order which relates to matters other than those referred to in the last proceeding
proviso shall be issued except with the concurrence of the Govt of the State.
(2) If the concurrence of the Govt of the State referred to in para (ii) of Sub Clause (b) of Clause (1) be given
before the Constituent Assembly for the purpose of framing the Constitution of the State is concerned. It shall
be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding the anything in the foregoing provisions of the 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 notify.

4. Historical aspect
When India and Pakistan gained their independence on
15 and 14 August 1947, respectively; J&K chose to
remain independent. There was an agreement by J&K
with Pakistan and India that none of them will attack J&K.
While India respected the agreement and exercised
restraint, Pakistan attacked Kashmir in a bid to annex it
by force. On 6 October 1947, Kashmir was attacked by
“Azad Kashmir Forces” supported by Pakistan. To save
J&K, Maharaja Hari Singh (the then ruler of J&K) chose to
accede J&K to India.
In October 1947, the accession was made by the ruler in
favour of India in consideration of certain commitments
made by Pt. Jawahar Lal Nehru (the then Prime Minister
of India). It was in the pursuance of those commitments
that Article 370 was incorporated in the Constitution.

6. The Ruler of Jammu and Kashmir signed the instrument of
accession whereby only three subjects were surrendered
by the State to the Dominion of India.
1. External affairs
2. Defense and
3. Communications
The State enjoys a greater measure of autonomy and the
power of the Union of India is restricted, as regards other
States.

7. Text of Article 370
(1) Notwithstanding anything in this Constitution,
(a) the provisions of article 238 shall not apply in relation
to the State of Jammu and Kashmir;
(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.

8. (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.

9. (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 proviso 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.

10. Special features
Separate Constitution: J&K is the only state in
India which has a Constitution of its own. The
Constitution of J&K was enacted by a separate
Constituent Assembly set up by the State and it
came into force on 26 January 1957.

11. Emergency Provisions
The Union of India has no power to declare Financial
Emergency under Article 360 in the state. The Union can
declare emergency in the state only in case of War or
External Aggression. No proclamation of emergency made
on the grounds of internal disturbance or imminent danger
thereof shall have effect in relation to the state unless (a) it
is made at the request or with the concurrence of the
government of the state; or (b) where it has not been so
made, it is applied subsequently by the President to that
state at the request or with the concurrence of the
government of that state. In December 1964, Articles 356
and 357 were extended to the state.

12. Fundamental Duties, Directive Principles &
Fundamental Rights
Part IV (Directive Principles of the State Policy) and Part
IVA (Fundamental Duties) of the Constitution are not
applicable to J&K. In addition to other fundamental rights,
Articles 19(1)(f) and 31(2) of the Constitution are still
applicable to J&K; hence the Fundamental Right to
property is still guaranteed in this state. In the Indian
Constitutional history only one Fundamental Right has
been added so far and that is Right to Education. this
right too is not extending to J&K.

13. High Court of J&K
The High Court of J&K has limited powers as compared
to other High Courts within India. It can’t declare any law
unconstitutional. Unlike High Courts in other states, under
Article 226 of the Constitution, it can’t issue writs except
for enforcement of Fundamental Rights.

14. Official Languages
Provisions of Part XVII of the Constitution apply to J&K
only insofar as they relate to (i) the official language of the
Union; (ii) the official language for communication
between one state and another; or between a state and
the Union; and (iii) language of the proceedings in the
Supreme Court.
Urdu is the official language of the state but use of
English is permitted for official purposes unless the state
legislature provides otherwise.

15. Miscellaneous
Certain special rights have been granted to the permanent
residents of J&K with regard to employment under the
state, acquisition of immovable property in the state,
settlement in the state, and scholarship and other forms of
aid as the state government may provide.
The 5th Schedule pertaining to the administration and
control of Schedule Areas and Scheduled Tribes and the
6th Schedule pertaining to administration of tribal areas
are not applicable to the state of J&K.

16. Autonomy in certain matters
Any action of the Union Legislature or Union Executive
which results in alteration of the name or territories or an
international treaty or agreement affecting the disposition
of any part of the territory of the state requires the
consent of the State Legislature or the State Executive
(as the case may be) to be effective. The Union has no
power to suspend the Constitution of J&K.

17. Procedure for Amendment of State
Constitution
• The Provisions of the State Constitution (except those relating to
the relationship of the state with the Union) may be amended by
an Act of the Legislative Assembly of the state passed by not less
than two-thirds of its membership.
• If such amendment seeks to affect Governor or Election
Commission, it needs President’s assent to come into effect. No
amendment of the Constitution of India shall extend to J&K unless
so extended by an order of the President under Article 370(1).

18. Other disputed territory around the world
• Hala'ib Triangle---Egypt/Sudan-Previously under joint administration;
Egypt now maintains full de facto control
• Aksai Chin--- China (PRC) India--Possibly also the ROC
• Baekdu Mountain- between-North Korea/China (PRC)-Also possibly
claimed by Republic of China (Taiwan)[note 1] and South Korea.
• Bhutanese enclaves in Tibet, namely Cherkip Gompa, Dho, Dungmar,
Gesur, Gezon, Itse Gompa, Khochar, Nyanri, Ringung, Sanmar,
Tarchen and Zuthulphuk- between -China (PRC)/Bhutan/Possibly
also the ROC.
• Boraibari –between-Bangladesh/India, ‘Boraibari falls under the
adverse possession category with the map suggesting that it should
be within Indian control.’

19. • Durand Line/Federally Administered Tribal Areas– between-
Pakistan/Afghanistan. ‘Region part of Pakistan but, claimed by
Afghanistan.’
• Hong Kong—between—China/Republic of China (Taiwan). ‘Then-
Taiwanese President Lee Teng-hui claimed that Hong Kong should
have returned to the ROC instead of the PRC because the ROC
government had the original manuscript of the Treaty of Nanking. It is
now controlled by the PRC.’
• Indo-Bangladesh enclaves—between—India/Bangladesh. ‘Inside the
main part of Bangladesh, there are 103 Indian enclaves, while inside
the main part of India, there are 71 Bangladeshi enclaves. In 1974
Bangladesh approved a proposed treaty to exchange all enclaves
within each other's territories, but India never ratified it. Another
agreement was announced in 2011. It requires a constitutional
amendment in India for ratification.’

20. • Jiandao –between--China (PRC)/North Korea/South
Korea. ‘Also possibly claimed by Republic of China
(Taiwan).’
• Kula Kangri and mountainous areas to the west of this
peak, plus the western Haa District of Bhutan—between--
China (PRC)/Bhutan. ‘Possibly also the ROC.’
• South Kuril Islands (Northern Territories)—between—
Russia/Japan.
• Macclesfield Bank—between--China (PRC)/Republic of
China (Taiwan) Vietnam.
• Etc etc

21. Diplomacy behind Jammu & Kashmir
Salman Haider
Former Foreign Secretary, Government of India
BOOK-War and Diplomacy in Kashmir ? 1947-48
• This is a revealing account of the first and most important steps in the dispute that continues to haunt us today.
Questions that still nag and perplex us are looked at in a new light: why did India go to the UN, why was a ceasefire
accepted, what was Nehru's role, and Mountbatten's, how did foreign intervention affect the issue, and many more.
Dasgupta has written with authority on these matters, drawing on recently released material from the British
archives, and bringing to the task his own wide experience of how governments function. He looks at dry official
documents with unusual discernment, to show what they contain, and, just as important, what they conceal. The
personalities of the time are described and their impact on events. Every comment is corroborated from the
extensive records on the subject, yet this is no academic treatise: deftly written, it delves into hitherto hidden aspects
of past history and vividly re-creates the drama of the time.
• ೦
• An important part of the book is what it shows about the British role in the conflict. While the two prime antagonists
have been under the microscope from the start, the part played by the former imperial power has largely remained
buried in the files, from where Dasgupta resurrects it. It is no secret, of course, that the armies of the two new
Dominions were led by British generals and contained significant numbers of British officers. How these foreign
servants of the new countries contrived to serve both their King and their employer is an intriguing tale. Their
overriding concern, dictated by Whitehall and not by New Delhi or Karachi, was to avert all out war, and to this end
they were prepared to ignore, or to subvert, orders they received from the authorities they served. On at least two
occasions, such refusal to obey had the effect of averting full-scale war. On a number of other occasions, the two
sides were pushed away from a course that threatened outright strife. Thus the third national element in the sub
continent, the British, was able to manipulate the other two effectively. As the author demonstrates, beyond a point it
became impossible to give effect to an independent policy without attaining national control of the armed forces.
•

22. • Actions to avert expanded war may be defensible, but the deliberate tilt towards Pakistan that British policy came to
acquire is an entirely different matter. In the initial stages, legal considerations were regarded as all-important, hence
Lord Mountbatten's insistence on formal accession before troops went in to protect Kashmir. This fact also weighed
heavily in Whitehall, to India?s undoubted advantage, but other factors soon drove British policy away from principle
towards expediency. Pakistan?s strategic value in the Cold War and its supposed importance in the Islamic world
caused British policy-makers to fear that if they came down against that country, irrespective of the rights and wrongs
of the dispute, Britain?s larger interests would suffer. At this juncture Philip Noel-Baker, Commonwealth Secretary in
the British Cabinet, gave his country's policy a deliberate pro-Pakistani bias from which it could not recover, even
when Prime Minister Attlee was disquieted by it. Under Noel-Baker's direction, the UN process was slanted away
from its original course of adjudicating on aggression, and Pakistan?s covert invasion of Kashmir was deliberately
downplayed. India's concerns were largely disregarded in the cause not of justice but of British interest. What could
have been a relatively straightforward matter before the UN acquired the impenetrable complexity from which it has
never emerged.
• ೦
• The events of the time, as reconstructed here, are something of a preview of issues that absorb New Delhi even
today. Pakistani support for the ?raiders?, unacknowledged but all too real, prefigured the cross border terrorism of
today. It confronted Indian policy makers with the same dilemmas and challenges. Thus an attack on the raiders?
bases in POK was seriously contemplated, not dissimilar to what was under consideration some months ago in
response to terrorist attacks on India; then, as now, the Government of India eventually desisted. India?s frustrations
on this score are ancient.
• The uniqueness of Lord Mountbatten?s position and the part he played is another of the absorbing features of those
times. He was no titular Head of State in India, being at the same time the head of the Cabinet Defence Committee
during a crucial period. He played a full part in that Committee where he was in close touch with the senior Ministers
of the Indian Cabinet. The author shows that his influence derived not from a shadowy relationship with Nehru but
from his formal and open authority within the Government. Though Pakistan remains very suspicious about his role,
the author demonstrates that Mountbatten was no enemy to that country and played an honourable part in trying to
keep the balance between the two contending Dominions.೦

23. • The leading figure from the Indian side was, of course, Jawaharlal Nehru. The portrait of Nehru that
emerges from Dasgupta?s narrative gives the lie to accusations of indecisiveness or softness that
some recent critics have directed against him. He was a realistic and determined leader. He was not
duped by the motivated advice proffered by his own military chiefs, who were British at that point,
and he repeatedly pushed them into a more active war effort. Nehru was impatient to replace British
officers with Indian successors, from whom he obtained useful advice even before they were
formally in command. Nehru and Sardar Patel worked effectively as a team. If Nehru stopped short
of expanding the war it was not for want of confidence in the outcome or belief in the rightness of
India?s cause. He was aware, however, that war was a costly and uncertain option and that it was
best avoided in the prevalent international situation. Even so, he refused a premature ceasefire,
despite pressures, and accepted it only when the terms were satisfactory. Thereafter the matter got
bogged down as power politics came to dominate the issue, to the point that Nehru was forced to
lose confidence in the UN process that he had himself initThis is a diplomatic and military history
that adds much to what has already been revealed about the crucial early days of the Kashmir
dispute. It remains closely focused on its theme and it forces the reader to think afresh about some
familiar matters. The author is throughout judicious and balanced in his tone and leads us through
highly contentious and disputed issues with objective good sense and judgment. He has no
polemical intent but the conclusion to which he is driven reminds us of the strength of India?s case
before the UN. This well researched and highly readable book deserves the great success it has
enjoyed. It is already in its seventh printing in its first year of publication, and has established a
place for itself on every bookshelf of modern South Asian affairs.

25. STRATEGIC IMPORTANCE of jammu & kashmir
• Jammu and Kashmir was pushed into vortex of world
politics and intrigue in wake of India's reference to the
United Nations Security Council on December 30,1947.
• In early fifties, the USA began to involve Pakistan in its
global policy of containing communist USSR and stopping
the spread of communism or its influence in the South-east
Asian region. Pakistan became member of military
alliances sponsored by the USA and even allowed the use
of its territory for establishment of military bases against
communist Russia. In the process Pakistan accumulated
huge stockpile of modern armament which emboldened it
to launch wars against India in 1965 and 1971 to grab
Jammu an d Kashmir.

26. • The communist regime of China questioned in early fifties
the validity of Mac-Mohan Line that was drawn by the
British Government of India to demarcate the border in
the north-east. They crossed this line and occupied large
pats of Indian territory in 19 62. In Jammu and Kashmir
the Chinese forces had occupied illegally 37,555 sq. km.
In Aksaichin plateau of Ladakh without being noticed by
the Indian Government. The Chinese had even
constructed an all-weather road across this plateau to
connect their Sinkiang province with Lassa in Tibet. The
Chinese also struck in the eastern Ladakh at an important
Indian out-post at Damchuk.

27. • The state of Jammu and Kashmir has evoked great
interest of western powers particularly that of USA with
the emergence of Common-wealth of Independent
State(C.I.S) in place of erstwhile USSR.
• Jammu and Kashmir being surrounded by Pakistan and
Afghanistan in the West, Tajikistan and China in the north
and Tibet region of China in the east makes it an area of
interest for all these powers. This interest has been
heightened due to unresolved conflict over Jammu and
Kashmir that exists between India and Pakistan.
• By constructing two strategic roads within the illegally
occupied territory in the north-east in Aksaichin plateau in
Ladakh and in Gilgit area in the north-west of Jammu and
Kashmir, the Indian defence has been made more
vulnerable by China and Pakistan .

28. • The serious situation that has developed in Jammu and
Kashmir poses a serious challenge to the Indian Defence
strategists. It has to be decided by them how long they
can afford to allow "no-war no-peace situation" to continue
within Kashmir valley and on the borders and Line of
Actual Control of Jammu and Kashmir state touching
Pakistan. They will have to give a serious thought whether
the continuance of current strategy can prove beneficial to
the long-term defence requirements of the country?

29. • In the disarmament Conference on CTBT held at Geneva
on June 20,1996, the Indian representative declared that
the treaty perpetuated inequity among the nations and did
not take seriously the national security concern of India
arising from the existence of nuclear arms stock-pile
available wit h the neighbouring countries. Accordingly
India finally opposed the CTBT. Not withstanding this
decision, it was not followed up by making desired budget
allocations available for 1996-97. In the last seven years
there has been no enhancement of these allocations in
real-terms.