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INTRODUCTION
The present study is aimed to trace the process of federalization in India and the inclusion of
special provisions for the Jammu and Kashmir state embodied in Article 370 of the constitution
of India. Since Jammu and Kashmir presents a variant of federal structure in which the Indian
states were welded, the present study is expected to provide a perspective for the future
evolution of the federal frames which the founding fathers of the Constitution of India
constructed. In recent years there has been insistent emphasis on the recognition of sub-national
diversities of India as components of the Indian federal system. The present study, which is
focussed on the analysis of the constitutional placement of Jammu and Kashmir in the Indian
federal structure, as a sub-national identity, reveals much and can serve as an indicator for any
pg. 1
Article 370 of the Constitution of India
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. Jawaharlal Nehru (the then Prime Minister of India). It was in the pursuance of
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. External affairs Defence and
Communications The State enjoys a greater measure of autonomy and the power of the Union
of India is restricted, as regards other States. Article 370 is a special clause in Indian
Constitution, a prize that was extracted out of India in 1950 by Sheikh Mohammed Abdullah
for throwing his lot with India, after lengthy negotiations with Indian leaders. Article 370 made
Jammu and Kashmir a country within a country, with its own flag, emblem, constitution and
Sadr-i-Riyasat (Prime Minister). The architect of the Indian Constitution, Dr. Ambedkar,
opposed granting Article 370 but it was on Indias first Prime Minister Jawaharlal Nehrus
insistence and personal guarantee that it was granted to the state. Article 370 specified that
except for Defence, Foreign Affairs and Communications, the Indian Parliament needed the
State Governments concurrence for applying such laws to Jammu and Kashmir as did not fall
under the heads of Defence, Foreign Affairs and Communications. Parliamentary laws
pertaining to these three subjects required consultation with the J&K State Government. Over
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Article 370 of the Constitution of India
the years, this procedure was followed to bring the state under the purview of Article 356, the
Supreme Court, the Election Commission, the Comptroller and Auditor General, thus
providing some level of order in the state. Article 370 was temporary arrangement. The
Constituent Assembly was dissolved in 1957 prior to the first State Assembly elections and
after it ratified the states accession to India and framed the states constitution adopted on 17th
November and coming into full force from 26th January 1957.
pg. 3
Article 370 of the Constitution of India
First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker,
Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: Why this
discrimination please? The answer was given by Nehrus confidant; the wise but
first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and 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 States 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 (hence the use of the term temporary provisions in the title of the Article),
but this could happen only when there was real peace and only when the people of the State
Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel
relationship to Manichean terms is to caricature history, and this is equally true of their attitude
towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir.
He wrote: Like some supremely beautiful woman, whose beauty is almost impersonal and
above human desire, such was Kashmir in all its feminine beauty of river and valley... Patel
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Article 370 of the Constitution of India
had a much more earthy and pragmatic view and as his masterly integration of princely
states demonstrated little time for capricious state leaders or their separatist tendencies.
But while Ayyangar negotiated with Nehrus backing the substance and scope of Article
370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly
(including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And
while Patel was deeply sceptical of a state becoming part of India and not recognising ...
[Indias] fundamental rights and directive principles of State policy, he was aware of, and a
This article specifies that except for Defence, Foreign Affairs, Finance and
the State Governments concurrence for applying all other laws. Thus the states residents lived
under a separate set of laws, including those related to citizenship, ownership of property, and
the citizens of J&K are citizens of India, but citizens of the rest of India cannot be citizens of
J&K!!!! He/She does not have a right to any property in J&K. He/She does not have the right
to vote in J&K, even if one has migrated there. The Urban Land Act 1976, which is in force
across the whole of the country, is not applicable to J&K. This means, all the rich landlords,
belonging to the majority community in J&K, can freely indulge in economic exploitation of
the poor. The Indian citizens, who are not state subjects, & living in J&K, cannot even get loans
& financial aids from various institutions, as the State Laws debar them. If a girl, belonging to
J&K, marries a boy who is not a state subject, she loses her all her rights to the state!!!!! The
Wealth Tax cannot be enforced in the state. The State Govt did not accept the Anti Defection
Law, adopted by the rest of the country, & brought in several amendments.
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Article 370 of the Constitution of India
Our Constitution gives equal rights to all citizens, but this right is not applicable in J&K. It is
a case of Locals vs non Locals who are not state subjects. They do not enjoy any political or
economic rights. Their children cannot get admission in colleges in Kashmir. In other words,
Article 370 violates the very principle of Indian Citizenship The vested interests in Kashmir,
be these politicians, bureaucrats, businessmen, judiciary, etc., have misused Article 370 for
their own nefarious purposes, by exploiting the poor and the down-trodden people of the state.
The rich have consistently used Article 370 to ensure that no financial legislation is introduced
in the state, which would make them accountable for their loot of the state treasury. These
include the provisions dealing with Gift Tax, Urban Land Ceiling Act, Wealth Tax, etc. This
has ensured that the rich continue to grow richer and the common masses are denied their
legitimate share of the economic pie. Article 370 has also helped create power elites and local
Sultans, who wield enormous power, which they use to trample upon the genuine demands of
common people for public welfare. As no outsider can settle in the state and own any property
there, the politically well-connected people stand to gain enormously. It is these influential
people who make the rules, decide the price and determine the buyer, since any competition
from an outsider is completely ruled out. The fact is that Article 370 is the only legal window
through which the Republic of India maintains its territorial link with J&K and extends it
jurisdiction to the State. To scrap this special provision would mean reverting to the Instrument
of Accession. Such reversion would merely offer an opportunity to the secessionists in Kashmir
to demand a plebiscite and proved further ground to those seeking to internationalize the issue.
After Kashmirs accession, this state was permitted to enjoy two special rights a separate
Constitution and retention of Kashmir State subject laws, in view the unusual historical
pg. 6
Article 370 of the Constitution of India
This article specifies that except for Defence, Foreign Affairs, Finance and
the State Governments concurrence for applying all other laws. Thus the states residents lived
under a separate set of laws, including those related to citizenship, ownership of property, and
the citizens of J&K are citizens of India, but citizens of the rest of India cannot be citizens of
J&K!!!! He/She does not have a right to any property in J&K. He/She does not have the right
to vote in J&K, even if one has migrated there. The Urban Land Act 1976, which is in force
across the whole of the country, is not applicable to J&K. This means, all the rich landlords,
belonging to the majority community in J&K, can freely indulge in economic exploitation of
the poor. The Indian citizens, who are not state subjects, & living in J&K, cannot even get loans
& financial aids from various institutions, as the State Laws debar them. If a girl, belonging to
J&K, marries a boy who is not a state subject, she loses her all her rights to the state!!!!! The
Wealth Tax cannot be enforced in the state. The State Govt did not accept the Anti Defection
Law, adopted by the rest of the country, & brought in several amendments.
Our Constitution gives equal rights to all citizens, but this right is not applicable in J&K. It is
a case of Locals vs non Locals who are not state subjects. They do not enjoy any political or
economic rights. Their children cannot get admission in colleges in Kashmir. In other words,
Article 370 violates the very principle of Indian Citizenship The vested interests in Kashmir,
be these politicians, bureaucrats, businessmen, judiciary, etc., have misused Article 370 for
their own nefarious purposes, by exploiting the poor and the down-trodden people of the state.
The rich have consistently used Article 370 to ensure that no financial legislation is introduced
in the state, which would make them accountable for their loot of the state treasury. These
pg. 7
Article 370 of the Constitution of India
include the provisions dealing with Gift Tax, Urban Land Ceiling Act, Wealth Tax, etc. This
has ensured that the rich continue to grow richer and the common masses are denied their
legitimate share of the economic pie. Article 370 has also helped create power elites and local
Sultans, who wield enormous power, which they use to trample upon the genuine demands of
common people for public welfare. As no outsider can settle in the state and own any property
there, the politically well-connected people stand to gain enormously. It is these influential
people who make the rules, decide the price and determine the buyer, since any competition
from an outsider is completely ruled out. The fact is that Article 370 is the only legal window
through which the Republic of India maintains its territorial link with J&K and extends it
jurisdiction to the State. To scrap this special provision would mean reverting to the Instrument
of Accession. Such reversion would merely offer an opportunity to the secessionists in Kashmir
to demand a plebiscite and proved further ground to those seeking to internationalize the issue.
After Kashmirs accession, this state was permitted to enjoy two special rights a separate
Constitution and retention of Kashmir State subject laws, in vie the unusual historical
pg. 8
Article 370 of the Constitution of India
The Article 370 was clearly meant to be a temporary provision included in the Constitution to
cater for the specific requirements of the troubled times immediately after Indias independence
and the states accession to India. It was meant to remain in operation during the existence of
As time passed, the vested interests within Jammu and Kashmir and the compulsions of various
political parties outside the state to appease their vote banks ensured its retention. No thought
was spared by the votaries of the retention of Article 370 for the enormous potential this
would have to wreak havoc on the unity and integrity of the country. It is the only state in India
To begin with, Article 370 has built emotional and psychological barriers between the people
of Kashmir and the rest of India, thus fostering a psychology of separatism. Existence of this
statute is used by Pakistan and its proxies in the valley to mock at the very concept of India
being one from Kashmir to Kanyakumari. It has kept alive the two-nation theory. Over a
period of time, the separatist lobby in the state has used this barrier to build a mindset of
alienation. Such a possibility had been clearly visualised by many political stalwarts who
comprised the Constituent Assembly of India. While speaking in the Constituent Assembly of
India on October 17, 1949, one of its distinguished members, Hasrat Mohani had said, The
The vested interests in Kashmir, be these politicians, bureaucrats, businessmen, judiciary, etc.,
have misused Article 370 for their own nefarious purposes, by exploiting the poor and the
down-trodden people of the state. The rich have consistently used Article 370 to ensure that no
financial legislation is introduced in the state, which would make them accountable for their
loot of the state treasury. These include the provisions dealing with Gift Tax, Urban Land
pg. 9
Article 370 of the Constitution of India
Ceiling Act, Wealth Tax, etc. This has ensured that the rich continue to grow richer and the
common masses are denied their legitimate share of the economic pie. Article 370 has also
helped create power elites and local Sultans, who wield enormous power, which they use to
trample upon the genuine demands of common people for public welfare. As no outsider can
settle in the state and own any property there, the politically well-connected people stand to
gain enormously. It is these influential people who make the rules, decide the price and
determine the buyer, since any competition from an outsider is completely ruled out.
This way, land resources are cornered by the rich and mighty, causing huge revenue losses to
the state. These vested interests have gained much financial assistance from India which they
have used to build separatist mindsets and secessionist lobbies with which they blackmail India.
To the gullible people of Kashmir, the abolition of Article 370 is projected as a catastrophic
event that will sound the death knell of Kashmiri Muslim culture, but in actual fact, this
argument is a ploy to prevent assimilation of Kashmiris into the national mainstream. That
way, these power brokers continue to expand their fiefdom, perpetuate their hold on political
and economic power and build a communal and obscurantist mindset, which in due course
The bogey of threat to the Kashmiri identity that the abolition of Article 370 will pose is merely
a ploy to camouflage the political ambitions of the leaders. Actually these very people cause a
great damage to Kashmiri culture, as no culture can survive without the stimulus of outside
contact and opportunity to cross-fertilise. It was this mindset that has been responsible for
creating the violent communal upsurge of 1989, which finally led to the exodus of Kashmiri
Pandits.
One of the main reasons for the failure of the state administration to respond to the anguished
cries of the Kashmiri Pandits to provide them with adequate security in 199890, was that the
pg. 10
Article 370 of the Constitution of India
state administration had been completely subverted from within by the radical anti-national
elements, who had infiltrated into the system over a period of time.
This infiltration had been made possible by the existence of Article 370. Within the broad
framework of the special status envisaged by Article 370, which isolated the state from rest of
India, it was far easy for secessionist elements to infiltrate into the administrative cadres of the
government.
One of the worst human tragedies the state faces is the denial of basic democratic and
citizenship rights to nearly 600,000 refugees from Pakistan who entered the state at the time of
partition or as a result of wars between India and Pakistan, thereafter. These refugees have
made the state their home for the last over six decades, yet neither they nor their children can
get citizenship rights in the state, as result of the applicability of Article 370. They can neither
vote nor fight election; they cannot get loans from the state nor seek admissions into various
Article 370 has also been misused by political oligarchs to perpetuate their hold on power by
preventing various democratic legislations from being applied to the state. Take the case of
anti-defection law, which is a useful provision for preventing defections. This legislation
vests the powers of deciding whether a legislator has defected or not, with the Speaker.
However, in Jammu and Kashmir, the power has been vested with a party chief, thus turning
Article 370 has also been used to deny a fair share of economic pie to both Ladakh and Jammu
region (see chapter 18). Violent agitations that rocked Ladakh in July-September 1989 were
the result of the resentment felt by Ladakhis at being treated unfairly by Kashmiris Muslims,
who have a stranglehold on political power in the state. It is ironic that whereas, Article 370
provides all the political, economic and cultural and other safeguards to Kashmiris, the same
pg. 11
Article 370 of the Constitution of India
provision is misused by Kashmiris to deny the same safeguards to people of other regions of
the state.
The citizens of Jammu and Kashmir become citizens of India automatically; whereas the
citizens of India have no such right when it comes to their claiming a similar right in the state.
Consequently, the citizens of Jammu and Kashmir can own property and settle anywhere in
India. On the other hand, Article 370 prevents any Indian from claiming any such right.
As early as 1932, Bertrand Glancy, Chairman of the Grievances Committee was compelled to
write in his report: The present definition of State Subject appears to be unduly rigid;
domiciles in a state for a thousand years cannot, according to this definition, qualify a man. It
would seem both unfair and inexpedient to deny the right to franchise to a man who has so far
identified himself with local interests as to make his domicile in the state over a consecutive
Dr BR Ambedkar had forewarned the country on this score in reply to Sheikh Abdullahs
demand for a special status in the Constituent Assembly of India. He had said, You want India
to defend Kashmir, give Kashmir equal rights over India, but you deny India and Indians all
rights in Kashmir. I am Law Minister of India, I cannot be a party to such betrayal of national
interests.
pg. 12
Article 370 of the Constitution of India
Article 370 of the constitution is the current bedrock of the constitutional relationship between
Jammu and Kashmir and the rest of India. With its abrogation being an avowed policy of the
Bharatya Janata party, the Jammu & Kashmir high courts observation that the provision has
acquired a state of permanence may cause some disquiet in the party and the government.
However, the high courts comment should be seen in the limited context in which it was made.
Its remarks that article 370 is beyond amendment or repeal or abrogation flows from an analysis
of the question whether the section had become incorporative after the state constituent
assembly framed its constitution, and the assembly itself ceased to exist. In fact, the question
whether its temporary provisions had acquired permanence was not before the court; nor was
the court hearing a challenge to validity of the article per se. It was dealing with the validity of
struck down the provisions for quotas in promotions on the ground that clause 4A of article 16,
introduced by the constitution 77th amendment to protect reservations in promotions, was not
applicable to Jammu & Kashmir. This because presidential order making law new clause
applicable to the state. One of the features of article 370 is that a constitution amendment
becomes applicable to Jammu & Kashmir only after the president issue an order. Without the
protection of the clause, there is no scope for reservation in promotions, as the Supreme Court
In its implications for article 370, the high court verdict has not broken any new ground. If
anything, it is a reiteration of earlier Supreme Court ruling that article 370 continues to be
operative. It impliedly rules that the presidents power to issue orders, as has been done over
the years making several laws and provisions of the constitution applicable to Jammu &
pg. 13
Article 370 of the Constitution of India
Kashmir remains untrammelled. By reiterating the core requirement that even provisions
affording constitutional protection requires the use of article 370 and orders issued under its
imprimatur, the court has reaffirmed that importance of the article and showed how abrogating
it will weaken the getting special status. Some may find the observations that article 370 are
beyond the repeal or abrogation debatable. Parliaments amending power under article 368
remains available for such measure, but it is far wiser for any dispensation to wait for a
resolution of the dispute with Pakistan over the entirety of Kashmirs territory before revisiting
the states constitutional status. Any premature action on this front may be a needless
misadventure.
pg. 14
Article 370 of the Constitution of India
2. The article says that the provisions of Article 238, which was omitted from the
Constitution in 1956 when Indian states were reorganised, shall not apply to the state
3. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft
Article 370.
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
6. Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was
7. Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under
8. The original draft explained "the Government of the State means the person for the
time being recognised 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
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Article 370 of the Constitution of India
9. On November 15, 1952, it was changed to "the Government of the State means the
person for the time being recognised 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.
pg. 16
Article 370 of the Constitution of India
Minister of state in the PMO, Jitendra Singh, sparked the Modi government's first controversy
by declaring the Centre has started the process for repealing Article 370, which grants special
status to Jammu and Kashmir within the Indian republic. His remarks have stirred up a hornet's
nest with political parties in Jammu & Kashmir, including J&K chief minister Omar Abdullah,
Rudranchirakkal,
There is no point for any special status or special considerations to any state in India as all these
states and its subjects are one or the other way under the control of Union of India and are
government. Gas supply, electricity generation and distribution, housing, law and order
phenomenon or created by the people. All these are under the purview of union of India which
is applicable to J&K also,then why the need of special status / weightage by article 370?
Ashish Chaudhary,
I want to stay in J&K and enjoy all the facilities as I normally do in other parts of the country.
What's wrong in that? Why can't J&K be considered to be just an another state? Why create a
hype about it? After so many years of Independence, certainly the time has come to amend the
Article 370 and giving the state the status it deserves! I'm totally with it.
pg. 17
Article 370 of the Constitution of India
Ashok,
One country should have one constitution and one set of laws of the land.
Ohlayan,
Yes there is a need to amend this article 370 from its present form-those provisions which are
special for J&k can be retained while in other respect that special status be brought at par with
rest of the other states- article in its present form has become outdated historically and creating
Vishrant Shukla
Art 370 was always designed to be an interim arrangement. Accession to India could not have
been made a decision contingent upon vague conditions. It's time the state of J&K be a state in
the true sense. This would help its alignment with the nation better and ensure prosperity
returns there.
NO (10.0%) 25 Votes
Suddhasattwa Bandyopadhyay,
Not only Kashmir alone, but also, every state in India should be allowed to write it's own
constitution as a true federation of states with their state rights just like we have in USA. And,
the governors and presidents should be directly elected by the people and the posts of Prime
Minister and Chief Minister should be abolished. The federal constitution should only be
responsible for Defence, Foreign Affairs, Internal Affairs, Finance, Foreign Trade and
pg. 18
Article 370 of the Constitution of India
T K S Rajan,
It was stupid to have constituted this article in the first place and even more stupid not to have
abrogated this for 60 odd years by successive governments, mostly congress. We need to first
let J&K residents realize what they are missing by having this article and how ruling junta of
the Abdullah family and others have taken advantage of this article and ruled it like their own
kingdom. Once the people realize this, abolishing this article will be a simple thing. Without
such initiatives, abolishing the article will only aggravate the problem.
Showkat,
Article 370 has been amended many times before and has remained not much effective now.
The main provisions like, Permission for the President and PM of India, Selection of local
person and Governor, provisions for State Civil Services, Nomenclature of Governor and CM
etc have been either amended or abolished. The only thing which stands good and has remained
a bone of contention is regarding purchase of land and Marriage in addition to a separate flag
for the state. Inter state marriages do happen in the valley, Provisions regarding Purchase of
land have been implemented by many other states also who offer land only on lease for certain
period. Regarding Flag, please tell, how many of you have seen the Flag of J&K and when it
pg. 19
Article 370 of the Constitution of India
CONCLUSION
The abrogation of article 370 of the constitution that would terminate Kashmirs special status
compared to other states in its 1st schedule of our constitution. This demand for repeal of article
The Kashmir committee has explained that this demand must be abandoned as it serves no
significant Indian interest, and cause unnecessary suspicion to many in Kashmir. Besides, it is
not an unreasonable price to pay for eliminating the influence of secessionists and liquidating
their plans. But most importantly, it is this article that gives a constitutional finality to the entire
Let me also clearly state that the repeal of article 370 is not possible by any constitutional
method. It can only be done by a constitutional coup, which even our supreme court will declare
Article 370 provides for its own repeal not by legislation by parliament of India, but by
(3) Notwithstanding anything in the foregoing provisions of this article, the president may, by
public notifications, 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
No such recommendation has been obtained and none is feasible now or in the foreseeable
future.
pg. 20
Article 370 of the Constitution of India
The article is result of freely negotiated contract between the people and constitutional
authority of India. It is thus a basic feature of the constitutional scheme that has evolved for the
future governance of the state, and is beyond any power of modification or repeal within the
kesavananda bharati doctrine evolved by our own supreme court, that anything which is
conflicts with seeks to alter this basic structure of the constitution, is ultra vires. The amending
We cannot compel our president to exercise a power which does not rest in him. We will only
earn the bad reputation of being constitutional terrorists without any significant gain. Even on
the express words of the proviso to clause 3 quoted above, such a power is completely negative.
pg. 21