Cameron Miranda
Article 370 of the Constitution of India, repealed in 2019, was a temporary provision that granted special status and a high degree of autonomy to the state of Jammu and Kashmir. It was included in the Constitution of India when it came into effect in 1950 and was contentious from the start due to the privileges it accorded to the state. Article 370, along with Article 35A, defined that the residents of Jammu and Kashmir lived under a separate set of laws compared to residents of other Indian states, including those related to citizenship, property ownership, and fundamental rights. The article also conferred powers on Jammu and Kashmir to have a separate constitution, a state flag, and autonomy over internal administration.
| Characteristics | Values |
|---|---|
| Date of Incorporation | 26 January 1950 |
| Type | Temporary provision |
| Purpose | Providing a framework for negotiations between the Indian government and the leadership of Jammu and Kashmir to determine the state's final political status |
| Powers Granted | Special status, autonomy, ability to formulate laws for permanent residents, separate constitution, state flag, and internal administration |
| Impact | Divisive due to privileges given to Jammu and Kashmir, including special rights and privileges for permanent residents |
| Modifications | In 1954, various provisions of the Indian Constitution were extended to Jammu and Kashmir with modifications; in 1986, Article 249 was extended to empower Indian Parliament to legislate on matters in the State List |
| Presidential Orders | In 1954, a Presidential Order specified the applicable articles of the Indian Constitution; in 2019, a new Presidential Order superseded the 1954 order, making all provisions of the Indian Constitution applicable to Jammu and Kashmir |
| Legal Challenges | Various scholars and political parties have challenged the legality of abrogating Article 370; the Supreme Court of India upheld the Indian Government's decision |
| Current Status | Article 370 was repealed and rendered inoperative in 2019, along with the removal of Jammu and Kashmir's statehood |
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What You'll Learn
Article 370 and Jammu and Kashmir's special status
Article 370 of the Indian Constitution was a temporary provision that granted special status to the state of Jammu and Kashmir, giving it autonomy and the power to formulate laws for the state's permanent residents. It was inserted on 17 October 1949 and came into force on 26 January 1950, contemporaneously with the Constitution of India.
The article conferred powers on Jammu and Kashmir to have a separate constitution, a state flag, and autonomy over internal administration. It also allowed the state legislature to define permanent residents and provide them with special rights and privileges, such as the right to own property, access to government jobs, and scholarships. These privileges were unavailable to non-permanent residents. Article 370 was incorporated into the Constitution of India as a temporary provision, intending to provide a framework for negotiations between the Indian government and Jammu and Kashmir to determine the state's final political status.
The article was contentious and regarded as divisive due to the privileges it granted to Jammu and Kashmir. There was widespread discontent over these privileges, particularly the restriction on land purchasing to permanent residents only. Over time, there were attempts to reintroduce bills related to Article 370 and permanent residency in the state's legislative houses, but they failed to pass.
In April 2018, the Supreme Court of India ruled that Article 370 had attained permanency since the state constituent assembly had ceased to exist. However, the Indian government rendered Article 370 'inoperative' and, on 5 August 2019, issued a Presidential Order superseding the 1954 order, making all provisions of the Indian Constitution applicable to Jammu and Kashmir. This led to the revocation of the special status of Jammu and Kashmir, and the region was reorganized into two separate union territories: Jammu and Kashmir, and Ladakh.
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Article 370 and the Indian Constitution
Article 370 of the Indian Constitution, included in 1950, gave special status to Jammu and Kashmir, a region in the northern part of the Indian subcontinent that has been disputed between India, Pakistan, and China since 1947. Jammu and Kashmir was administered by India as a state from 1952 to 2019, and Article 370 conferred on it the power to have a separate constitution, a state flag, and autonomy of internal administration.
Article 370 was incorporated into the Constitution of India as a temporary provision, intending to provide a framework for negotiations between the Indian government and the leadership of Jammu and Kashmir to determine the state's final political status. It was regarded as divisive because of the privileges it granted to Jammu and Kashmir, and some believed it prevented the state from fully integrating with the country. The article was drafted in Part XXI of the Indian constitution, titled "Temporary, Transitional and Special Provisions". It stated that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian constitution would apply to the state. The state assembly could also abrogate Article 370 altogether, in which case the entire Indian Constitution would have applied to the state.
In 1954, a Presidential Order was issued, extending various provisions of the Indian Constitution to Jammu and Kashmir, subject to certain modifications. This order was based on the recommendations of the state's Constituent Assembly, which had been convened to determine which provisions of the Indian Constitution should apply to the state. The Constituent Assembly dissolved itself in 1957 without recommending either the abrogation or amendment of Article 370, thus the article was considered to have become a permanent feature of the Indian Constitution.
Article 35A, added to the Indian Constitution through a Presidential Order in 1954 under the authority of Article 370, allowed the Jammu and Kashmir state legislature to define permanent residents of the state and provide them with special rights and privileges, such as the right to own property and access to government jobs and scholarships. It also prohibited non-permanent residents from acquiring these rights.
On 5 August 2019, the Government of India issued a Presidential Order superseding the 1954 order, making all the provisions of the Indian Constitution applicable to Jammu and Kashmir. This order was based on a resolution passed in both houses of India's parliament with a two-thirds majority. Article 370 was thereby rendered inoperative, along with the removal of Jammu and Kashmir's statehood in 2019. The region was reorganized into two separate union territories: Jammu and Kashmir, and Ladakh.
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Presidential Orders and Article 370
Article 370 was incorporated into the Constitution of India as a temporary provision, with the intention of providing a framework for negotiations between the Indian government and the leadership of Jammu and Kashmir to determine the state's final political status. This article, along with Article 35A, defined that the Jammu and Kashmir state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. Article 370 was drafted in Part XXI of the Indian constitution, titled "Temporary, Transitional and Special Provisions". It stated that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian constitution would apply to the state. The state assembly could also abrogate Article 370 altogether, in which case, all of the Indian Constitution would have applied to the state.
The 1954 Presidential Order, issued in consultation with the state's Constituent Assembly, specified the articles of the Indian constitution that applied to the state. The Constituent Assembly dissolved itself in 1956 without recommending the abrogation of Article 370, and the article was deemed to have become a permanent feature of the Indian Constitution. The effect of the Presidential orders issued since 1954 has been to extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India.
On August 5, 2019, the Government of India issued a Presidential Order superseding the 1954 order, making all the provisions of the Indian constitution applicable to Jammu and Kashmir. The President effected a modification to Article 367, the interpretation clause of the Constitution. The Presidential Order inserts a new sub-clause (4)(d) which states that the words "Constituent Assembly" in Article 370(3) must be read as "Legislative Assembly of the State". This modification was necessary because the Constituent Assembly had dissolved itself without making any recommendation for amendment or abrogation, and the Indian Supreme Court had ruled that Article 370 was now a permanent part of the Indian Constitution.
The Presidential Order has been criticised as being unconstitutional, as it amends Article 370 through Article 367, which the President does not have the power to do directly. The President's power to act on the recommendation of the J&K Assembly is also suspect, as he is bound by his oath of office to uphold the Indian Constitution as it stands today. A formal amendment to Article 367 or Article 370(3) would strengthen the President's hand as and when he issues a notification to abrogate Article 370.
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Article 370 and the state's permanent residents
Article 370 of the Indian Constitution was a 'temporary provision' inserted on 17 October 1949, which gave special powers to the state of Jammu and Kashmir, authorising it to have its own constitution. The article played a pivotal role in granting Jammu and Kashmir special autonomy within India, allowing it to formulate laws for its permanent residents.
The legal term "permanent residents" replaced the term state subjects in earlier laws. Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir, and the Article 35A was added to the constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state, and employment. The state gave special privileges to permanent residents in matters such as residence, property, education, and government jobs, which were unavailable to others.
The status of permanent residents was determined by the state government officials of Jammu and Kashmir, who issued "permanent resident certificates". These certificates differed by gender, with those issued to females marked "valid only till marriage", while certificates for males had no such markings.
The revocation of Article 370 in August 2019 ended Jammu and Kashmir's special autonomy, integrating the region more closely with India by reorganising it into union territories and extending Indian laws. This move had significant political, legal, and social implications, deeply affecting the region's governance and status. It intensified regional and Indo-Pakistani tensions, led to security clampdowns, and sparked debates on development, human rights, and national integration.
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Article 370's impact on laws and human rights
Article 370 of the Indian Constitution was a 'temporary provision' that granted special powers to the state of Jammu and Kashmir, allowing it to have its own constitution, a state flag, and autonomy over its internal administration. This article exempted Jammu and Kashmir from the complete applicability of the Indian Constitution and gave the state special privileges in matters such as residence, property, education, and government jobs.
The impact of Article 370 on the laws of Jammu and Kashmir was significant. It allowed the state to have a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, which were different from the laws applicable to residents of other Indian states. The state legislature was empowered to define 'permanent residents', who were entitled to property rights, employment, scholarships, and other social benefits. However, this also led to criticism, as opponents argued that certain bills, such as the Permanent Residents (Disqualification) legislation, discriminated against individuals based on their gender and violated the fundamental rights guaranteed under the Indian Constitution.
The revocation of Article 370's special status in 2019 by the Indian government had a significant impact on the region's politics and bureaucracy. It led to the cutting off of communication lines in the Kashmir Valley, the deployment of additional security forces, and the detention of several leading Kashmiri politicians. The government justified these actions as necessary to maintain law and order and prevent violence. The revocation also resulted in changes to the region's laws, including new domicile rules and the extension of various provisions of the Indian Constitution to Jammu and Kashmir, with modifications and exceptions agreed upon by the state government.
The impact of Article 370 and its revocation on human rights has been a contentious issue. While some argued that the article protected the ethnic identity of the people of Jammu and Kashmir, others claimed that it enabled the state to have lower standards of human rights. The state legislature's addition of "preventive detention laws" that were exempted from human rights challenges for twenty-five years further complicated this matter. The revocation of Article 370 has led to calls for investigations into human rights incidents in the region, with Supreme Court Justice Sanjay Kishan Kaul recommending a commission to examine such incidents since 1980, regardless of whether they were committed by state or non-state actors.
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Frequently asked questions
Article 370 is a 'temporary provision' that was inserted into the Indian Constitution in 1949 or 1950. It gave special powers to the state of Jammu and Kashmir, authorising it to have its own constitution.
Article 370 granted special status to Jammu and Kashmir, giving it a high degree of autonomy within the Indian union. It also allowed the state to have its own constitution, a state flag, and autonomy over internal administration.
Article 370, along with Article 35A, defined that the residents of Jammu and Kashmir lived under a separate set of laws compared to residents of other Indian states. This included laws related to citizenship, ownership of property, and fundamental rights.
No, Article 370 was repealed and rendered inoperative in 2019, along with the removal of Jammu and Kashmir's statehood. The region was reorganised into two separate union territories—Jammu and Kashmir, and Ladakh.
