ARTICLE 370

OF

THE INDIAN CONSTITUTION

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INTRODUCTION

Article 370 of the Constitution of India provides special autonomy to the state
of Jammu & Kashmir (J&K). The erstwhile Article 238, pertaining to Part B
states or former princely states was repealed by the 7th Constitutional
Amendment in 1956 after the reorganisation of Indian states. However Article
370 overrode the provisions of Article 238 as special stipulations for J&K.
Article 370 have been controversial right from inception, with Dr BR Ambedkar
as the principal drafter of the Constitution, having refused to draft the article
owing its bias and unequaldispensations within the framework of a free India.
The drafting was eventually done by GopalaswamiAyyangar, who was a
confidante of Prime Minister Jawaharlal Nehru and former aide of the Maharaja
of J&K. It was initially meant to be temporary in nature; hence it was included
in the Temporary and Transitional Provisions in Part XXI (Varshney 1992;
Thapliyal2011).

HISTORY OF ARTICLE 370

Article 370 of the Constitution of India relating to the State of Jammu and
Kashmir is now over sixty years old. The provision was drafted in 1947 by
Sheikh Abdullah, who had by then been appointed prime minister of Jammu &
Kashmir by Maharaja Hari Singh and JawaharLal Nehru. Sheikh Abdullah had
argued that Article 370 should not be placed under temporary provisions of the
Constitution. He wanted 'iron clad autonomy' for the state, which Center didn't
comply with.
The first question to be answered, is the rationale behind the insertion of Article
370. Or as the great poet and thinker, MaulanaHasratMohini, asked in the
Constituent Assembly on October 17, 1949: “Why this discrimination please?”
The answer was given by Nehru’s confidant, the wise but misunderstood
Thanjavur Brahmin, GopalaswamiAyyangar (Minister without portfolio in the
first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and

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Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a
variety of reasons Kashmir, unlike other princely states, was not yet ripe for
integration. India had been at war with Pakistan over Jammu and Kashmir and
while there was a ceasefire, the conditions were still “unusual and abnormal.”
Part of the State’s territory was in the hands of “rebels and enemies.”

The involvement of the United Nations brought an international dimension to

this conflict, an “entanglement” which would end only when the “Kashmir
problem is satisfactorily resolved.” Finally, Ayyangar argued that the “will of
the people through the instrument of the [J&K] Constituent Assembly will
determine the constitution of the State as well as the sphere of Union
jurisdiction over the State.” In sum, there was hope that J&K would one day
integrate like other States of the Union, but this could happen only when there
was real peace and only when the people of the State acquiesced to such an
arrangement.

NEGOTIATIONS OVER ARTICLE 370

Indeed, the synergy that Patel and Nehru brought to governing India is evident
in the negotiations over Article 370. Consider this. In October 1949, there was a
tense standoff between Sheikh Abdullah and Ayyangar over parts of Article 370
(or Article 306A as it was known during the drafting stage). Nehru was in the
United States, where — addressing members of the U.S. Congress
— he said: “Where freedom is menaced or justice threatened or where
aggression takes place, we cannot be and shall not be neutral.” Meanwhile,
Ayyangar was struggling with the Sheikh, and later even threatened to resign
from the Constituent Assembly. “You have left me even more distressed than I
have been since I received your last letter … I feel weighted with the
responsibility of finding a solution for the difficulties that, after Panditji left for
America ... have been created … without adequate excuse,” he wrote to the

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Sheikh on October 15. And who did Ayyangar turn to, in this crisis with the
Sheikh, while Nehru was abroad? None other than the Sardar himself. Patel, of
course, was not enamoured by the Sheikh, who he thought kept changing
course. He wrote to Ayyangar: “Whenever Sheikh Sahib wishes to back out, he
always confronts us with his duty to the people.” But it was Patel finally who
managed the crisis and navigated most of the amendments sought of the Sheikh
through the Congress party and the Constituent Assembly to ensure that Article
370 became part of the Indian Constitution.

TRUTH VALUE OF THE INTERPRETATION

The wrong interpretation of this Article has created many fault lines that are
now staring the nation in the face. It is a strange case in the Constitutional
history of the India that a very weak Article has been given teeth by the out-of-
context connotations that are now posing a challenge to secular nation-building
in Jammu & Kashmir. Separatist formations and the so-called mainstream
parties based in the Valley are using this article as a tool to propagate their
communal agenda and subjecting non-Muslim minorities into servitude of their
communal politics. The result has been a demographic change in the entire State
with internal displacement of the religious minorities like Kashmiri Pandits in
1990 and the consolidation of the majoritarian communal pockets that fan the
air of Muslim separatism. It is a paradox that this Article is being used against
the spirit of the Constitution by helping Muslim separatist tendencies to turn
Jammu & Kashmir into a State which is against the Constitution.

ANALYSIS OF THE WORD “TEMPORARY”

Is it one week, one month, one year or one decade? Judging by the indifference
of the National Commission to Review the Working of the
Constitution[NCRWC] towards 'Temporary, Transitional and Special

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Provisions' contained in Part XXI of our Constitution, even half a century would
seem to justify the label of 'temporary.'
Sadly, the NCRWC didn't have either the capability to understand the position
or the courage to recommend what it should have: abrogation of Article 370 or,
in the least, its dilution so as to return to Parliament the constitutional
supremacy it merits. After its go-by to a definition of secularism and the
enactment of a uniform civil code, Article 370 thus became the NCRWC's third
failure.

THE SUPREME COURT OF INDIA OPINED THAT:

"The effect of the application of the present article (Article 370) has to be
judged in the light of its objects and its terms considered in the context of the
special features of the constitutional relationship between [the] State and India.
The Constitution makers were obviously anxious that the said relationship
should be finally determined by the Constituent Assembly of the State itself..."
(PremNathKaul vs. the State of Jammu and Kashmir, AIR 1959 SC 749)
According to Clause (1) (c) of Article 370, the only Articles of the Constitution
of India which applied of their own force to the State were Articles 1 and 370;
Clause (1) (d) provided that the other provisions of the Constitution of India
applicable to the State could be determined by the President of India in
consultation with the Government of the State. Exceptions and modifications
could be made in the same manner and the provisions could be enlarged too.
"Power to modify includes a power to enlarge or add to an existing provision,"
held the High Court of Kashmir in the case of Sant Singh v. State, (AIR 1959 J
& K 35), where the question was whether the enlargement of the provisions by
the Government of India in consultation with the Government of Jammu and
Kashmir. Therefore, the term 'temporary' has been used in Article 370 so as to
minimise the difficulty in the way of the amendment of the Constitution of

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India, whenever the necessity arises to modify or extend the scope of other
provisions of the Constitution of India.
LAWS FOR J&K
As a matter of fact, in exercise of the powers conferred by Article 370 (i) (ii),
the President of India has issued a number of Constitution (Application to
Jammu and Kashmir) orders from 1950 onwards applying various other
provisions of the Constitution of India and the laws enacted by Parliament to the
State of Jammu and Kashmir. The first such order was made in 1950, which was
superseded by the 1954 order. There have been almost 45 amendment orders to
the 1954 order till date applying various other provisions of the Constitution of
India to the State. A part of the territory of Jammu and Kashmir continues be
under enemy occupation.
INSTRUMENT OF ACCESSION
Unlike those from the other States, Kashmir’s representatives made it clear that
Kashmir’s association with India would be based ‘only’ on the terms of the
Instrument of Accession. The Constitution of India laid down provisions not
only for the former provinces of British India but also for the other princely
States as full-fledged constituents units of the Union. In the case of Kashmir, it
had to make special provisions to cover that particular case. The basis of the
constitutional relationship of Jammu and Kashmir with India was being changed
from that created by the Instrument of Accession to the position under Article
370 of the Constitution of India. The temporary nature of Art. 370 arises merely
because the power to finalise the constitutional relationship between the State
and the Union of India had been specifically vested in the Jammu and Kashmir
Constituent Assembly.

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CALL FOR ABROGATION
In 2014, as part of BharatiyaJanata Party manifesto for the 2014 general
election, the party pledged for integrating the state of Jammu and Kashmir into
the Union of India. After winning the elections, attempts were made by the
party along with RSS party for abrogation of Article 370. Also, Congress leader
Karan Singh, son of Maharaja Hari Singh, has, opined that an integral review of
Article 370 is overdue and, to be worked with the State of Jammu and Kashmir.
However, in October 2015, the High Court of Jammu and Kashmir has 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, the Article 370 has taken on the
features of a "permanent provision" despite being titled a temporary provision in
the Constitution.

FACTS AND FIGURES

1. According to the Constitution of India, Article 370 provides temporary
provisions to the state of Jammu and Kashmir, granting it special autonomy.

2. The article says that the provisions of Article 238, which was omitted from
the Constitution in 1956 when Indian states were reorganized, shall not apply to
the state of Jammu and Kashmir.

3. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had

refused to draft Article 370.

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4. In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri
leader Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the
draft of a suitable article to be included in the Constitution.

5. Article 370 was eventually drafted by GopalaswamiAyyangar

6. Ayyangar was a minister without portfolio in the first Union Cabinet of India.
He was also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir

7. Article 370 is drafted in Amendment of the Constitution section, in Part XXI,

under Temporary and Transitional Provisions.

8. The original draft explained "the Government of the State means the person
for the time being recognized 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."

9. On November 15, 1952, it was changed to "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."

10. Under Article 370 the Indian Parliament cannot increase or reduce the
borders of the state.

ARTICLE 370 JAMMU & KASHMIR, GOVT PROPOSAL ON

REMOVING ARTICLE 370 & 37 A

Removing of Article 370 & 35A:

Our Union Home Minister Amit Shah has proposed a resolution in the Upper
House (RajyaSabha) to repeal Article 370 from Jammu & Kashmir which gives
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special status for the state Jammu & Kashmir. The article 370 is a temporary
provision granting special autonomous status to Jammu and Kashmir. Now the
Government of India has scrapped the article 370 and divide the Jammu &
Kashmir into two UniorTerritories(UTs). One is Jammu & Kashmir and another
one is Ladhak. Jammu & Kashmir is having with a Legislature &Ladhak is
without having a Legislature.

Precautionary Steps took by the Indian Government in J&K:

 Due to this proposal of removing the article from the Jammu &
Kashmir, the opposition parties have proposed their strong opposition
against this repeal and adjourned the Upper house.
 Then after that, the last night(Sunday) the Govt of India has taken the
former chief ministers of Jammu & Kashmir Mehbooba Mufti & Omar
Abdullah into a house arrest. Along with they have temporarily banned
communication services like Mobile, Broadband Internet Connection
& Cable TV.
 Meanwhile, Congress leader Usman Majid & CPI MLA Tarigami have
been arrested at the midnight.
 The government of India also ordered that public meetings or rallies
would not be allowed and there would be no movement of the public.
Also, all educational institutions should remain closed.
 After that, the J&K administration has diminished the AmarnathYatra
and asked Pilgrims & Tourists to return to their respective states on
Friday.

Provisions of Article 370 Jammu & Kashmir:

According to the article, the following applies to the Indian Government

 The official language of this state is Urdu.

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  Indian citizens from other states cannot purchase land or property in
Jammu & Kashmir.
 The Centre has no power to declare a financial emergency under
Article 360 in the state.
 It can declare an emergency in the state only in case of war or external
aggression.
 The central government can therefore not declare emergency on
grounds of internal disturbance or imminent danger unless it is made at
the request or with the concurrence of the state government.
 J&K is the only state which doesn’t give to provide detailed
information regarding the Money Flowing in the state.
 Right to Education Act was also not extended to Jammu & Kashmir.
 Regarding, Part IV, Article 36-51(Directive Principles of State
Policies) and Part IVA, Article 51A(Fundamental Duties) is not
applicable for J&K.
 The 5th & 6th schedule of the Indian Constitution has not applicable
for J&K.
 No amendment shall extend to Jammu & Kashmir unless so extended
by J&K president under Article 370(1).

The preamble to the constitution of Jammu & Kashmir:

JUSTICE, Social, Economical & Political

LIBERTY of thought, Expression, Belief, Faith & Worship

EQUALITY of status and of opportunity; and to promote among us all

FRATERNITY assuring the dignity of the individual and union of the nation.

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 ARTICLE 370:
SEEKING LEGALITY FOR THE ILLEGITIMATE

Genesis of Article 370 created inequality in India

The Instrument of Accession for the state of Jammu & Kashmir was signed by
Maharaja Hari Singh on 26th October 1947, making the state an integral part of
the newly independent India. It also marked the culmination of the longest
standing conflict in South Asia. In these the most desperate of circumstances, in
an act signifying sheer despondency, the wily Maharaja still managed to insert
clauses in to the agreement to ensure Indian jurisdiction remained confined to
defence, external affairs and communications. Effectively, these clauses were
meant as safeguards to his own sovereigntyi (Akbar 2008: 135). It also signified
in some ways the Maharaja's difficulty in swallowing a situation wherein he not
only had to deal with Nehru, Prime Minister of India, but also Sheikh Abdullah,
who had consistently opposed him for over twenty yearsii (Schofield 2010).
Despite some opposition from the Constituent Assembly of India, the issue
never drew the kind of vehement opposition that would have ensured its timely
burial, and ultimately it became the effective precursor to Article 370 of the
Indian Constitution. Due to the opposition of Dr BR Ambedkar in drafting the
article, owing its bias and unequal dispensation within the framework of
independent India's Constitution, the task was entrusted to
GopalaswamiAyyangar, trusted by Prime Minister Nehru, and a former aide of
the Maharaja (Thapliyal 2011). Ayyangar argued that the special article
governing J&K was due to the special conditions of its accession to India
coupled with the military conflict that had overtaken it immediately. Further,
with the involvement of the United Nations, it was seen as a positive projection
of the nascent Indian republic trying to base such issues on the 'will of the
people'.

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Thus, Article 370 confers special status to the state of J&K, which is one of the
vexingconundrums of contemporary Indian politics; in fact the inherent
inequality gave rise to the entiredebate about a special status given unlike other
princely states which acceded to India in 1947 (Varshney 1992).

Retention of Article 370 allowed the contentious issue to fester

Part XXI of the Indian Constitution stipulates autonomy for the state of J&Kiv
(Constitution of India Updated 2015). Part XXI of the Constitution deals with
the Temporary, Transitional and Special Provisions. Some of these provisions
also exist for tribal areas in India, such as Arunachal Pradesh, Andaman &
Nicobar Islands and Nagaland. However the special status granted to J&K after
accession has been retained as such. The ostensible reason for this is the on-
going dispute at the UN Security Council between India and Pakistan.

Despite the grant of special status to J&K, it remained mired in controversy and
political intrigue right from accession itself. Conflicting interests of the main
protagonists resulted in a series of differences on a number of key issues
(Varshney 1992). Needless to say, it set the tone for the future as well. For
instance, India and Pakistan were at loggerheads on the legality of accession,
both making claims and counter claims. With the issue being raised before the
UN, the question of a plebiscite became more complex. This complexity was
owed to Pakistan's refusal to concede the territories annexed by it and ostensibly
named Azad Kashmir or free Kashmir. India on the other hand used this as an
argument against the conduct of plebiscite; plebiscite after all was meant for the
complete state of J&K, and not just the portion which remained under Indian
control. A special United Nations Commission for India and Pakistan (UNCIP)
was set up to negotiate modalities of withdrawal in terms of the Security
Council resolution. The commission made three visits to the subcontinent
between 1948 and 1949, trying to find a solution agreeable to both India and

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Pakistan. A resolution was passed in August 1948 proposing a three-part
process, which was accepted by India but rejected by Pakistanv(Korbel1953).
India insisted on Pakistan withdrawal first, whereas Pakistan’s contention was
that there was no guarantee that India would withdraw afterwards. This resulted
in a stalemate.
Ramifications of Article 370 create inequality within J&K
Although J&K was adopted as the 15th state of India, the special status
conferred on the
state under Article 370, limits the jurisdiction of the Centre over the state.
Despite this, Sheikh Abdullah considered the inclusion of the article under
Temporary and Transitional Provisions of the Constitution dubious, and insisted
on iron-clad guarantees. Notwithstanding the guarantees offered by the
Constitution which result in severe restrictions on the Centre Abdullah used
theseas the underlying (mis)interpretations for his historical shift from a pro-
India stance to one of Independence/ self-determination. It got him arrested in
1953, as well as dismissal of his government – the start to what would be nearly
20 years in detention. Under Emergency Provisions, the Centre can only declare
emergency in J&K in case of war/ external aggression.

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Illustrative Map 1: Religions of Jammu and Kashmir, 1931 Census

Illustrative Map 2: Religions of Jammu and Kashmir, 1948, post occupation of

territories by Pakistan, Black line distinguishing Pakistan occupied Kashmir,
Gilgit and Baltistan, and Indian state of Jammu and Kashmir

Illustrative Map 3: Regions of Jammu and Kashmir, post occupation of

territories by Pakistan and China in 1962
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Illustrative Map 4: Religions of Jammu and Kashmir, 1981 census, with areas
occupied by China

Illustrative Map 5: Religions of Jammu and Kashmir, current, with areas

occupied by China
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Illustrative Map 6: Regions of Jammu and Kashmir, post occupation of
territories by Pakistan and China, GREEN denoting Pakistan occupied Kashmir
and Gilgit-Baltistan, PINK denotingChinese occupied Aksai Chin, PURPLE
denoting Sakshgam illegally ceded to China by Pakistan,and WHITE denoting
areas with separatist agenda

Table 1: Population of Jammu & Kashmir by religious figures*

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*Source: Census of India, 2011
As per records, approximately 525,000 people migrated from Indian J&K to
Pakistan and PoK in 1947- 48, as against about 226,000 from PoK to India
(Snedden, 2013). Since the 1990s,about 300,000 Kashmiri Pandits have been
displaced from Kashmir as per analyses by various agencies, including the
Central Intelligence Agency (CIA).

In the larger context of the scenario today, Article 370 seems to be unjustly
tilted in favour of the Muslim population of (only) Kashmir, whereas it
seemingly neglects the aspirations of Shia Muslims in other parts of J&K,
Hindus, Sikhs and Buddhists. These communities have close links with their
brethren in other parts of the country. For instance, Hindus, largely Dogras, in
Jammu are closer to the Dograsin Himachal Pradesh and Punjab, Sikhs have ties
with the Sikhs of Punjab and north India, and even the Buddhists are closely
linked to the Buddhist communities settled in Himachal Pradesh and other parts
of north India.

POLITICS OF ARTICLE 370 ARE MANIFESTATIONS OF LIMITED

POLITICAL
LEVERAGE
Due to the politically charged atmosphere, Article 370 finds a mention in
various fora.These can largely be viewed as bids to gain political ground or
create political space for parties seeking media attention. Alternatively, with a
mention of Article 370, political parties try to popularise their respective
agendas and polarise their respective constituencies. Usually such political
statements are made without reference to the fact that J&K is not a
homogeneous entity; Jammu has a majority Hindu population and Ladakh
comprises Buddhists and Shia Muslims.

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CONCLUSION
Article 370 was envisaged as an instrument for a vulnerable populace, unsure of
protection of their identity and culture. In the same instance it was meant to
assure autonomy to create space in governance and empower people to decide
their future. As can be seen from the arguments above, this delegation of power
has remained mired in the clutches of only a few. The very basis of the
autonomy granted is challenged due to the lack of accountability in public life.
In the larger context of India, whether it is the refugees from Poonch, Mirpur
and Muzaffarabad, or the case of Kashmiri Pandits in exile, the state has failed
to provide a mechanism for redressxx(Asian Centre for Human Rights n.d;
Economic Times 2016). The extreme case ofdiscrimination cannot be justified
in terms of any reasoning offered by Article 370 or those whoadvocate it.
Instead of empowering the people to decide their own future and fate, the article
risks this very underlying reason for its incorporation in the first place, and has
been abused without any qualmsxxi (Asian Centre for Human Rights n.d).
Therefore, the argument that it is theerosion of Article 370 and not its creation
that is helping separatism bloom stands without merit. It is these factors which
make a strong case for revocation of Article 370 to be taken at the highest levels
without further delay and discord.

******

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 CONTENTS

• Introduction
• History of article 370
• Negotiations over article 370
• Truth value of the interpretation analysis of the word
“temporary”
• The supreme court of India opined that:
• Instrument of accession
• Call for abrogation
• Article 370 Jammu & Kashmir, Govt proposal on removing
article 370 & 37 a

• Article 370: seeking legality for the illegitimate

• Ramifications of article 370 create inequality within J&K

• Politics of article 370 are manifestations of limited political -
leverage
• Conclusion

***

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