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ARTICLE 370 OF INDIAN CONSTITUTION

Madhavi Gaur February 24, 2024 12:35 14026 0

Explore the importanc and implication of Article 370 of the Indian Constitution, which granted special autonomous status to the region of Jammu and Kashmir, until its abrogation in 2019. Understand the historical context, legal ramifications, and socio-political dynamics surrounding this constitutional provision.

ARTICLE 370 OF INDIAN CONSTITUTION

Introduction to the Article 370 of the Indian Constitution

Article 370 was a provision in the Constitution of India that granted a special autonomous status to the region of Jammu and Kashmir (J&K). It was included in Part XXI of the Indian Constitution under the heading “Temporary, Transitional and Special Provisions.” 

Article 370 granted the state of Jammu and Kashmir significant autonomy, allowing it to have its own constitution, flag, and autonomy over internal affairs, except for matters such as defence, foreign affairs, finance, and communications, which were under the jurisdiction of the Indian government. This article also restricted the application of Indian laws in the state.

On August 5, 2019, the Government of India announced the abrogation of Article 370 through a presidential order. This move was accompanied by the reorganization of the state into two separate Union Territories: (J&K) and Ladakh.

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Overview of the accession of Jammu and Kashmir into the Indian Union

Partition and Independence (1947): Following the partition of British India in 1947 into India and Pakistan, princely states were given the option to accede to either India or Pakistan, based on geographical contiguity, demographics, and the wishes of the princely states’ rulers. J&K, a princely state with a Muslim-majority population and a Hindu ruler, Maharaja Hari Singh, became a crucial point of contention between India and Pakistan.

Accession to India: Initially, Maharaja Hari Singh, the ruler of J&K, wanted to maintain independence. However, as tribal invaders from Pakistan launched attacks on the region, he sought military assistance from India. In October 1947, he signed the Instrument of Accession, acceding the princely state to India.

Acceptance by India: The Instrument of Accession was accepted by the Governor-General of India, Lord Mountbatten, on behalf of the Government of India, leading to the deployment of Indian troops in J&K to repel the invaders.

United Nations Intervention: India’s decision to send troops to J&K led to international scrutiny, with Pakistan taking the matter to the United Nations Security Council (UNSC). A ceasefire was eventually brokered, leading to the Line of Control (LoC) being established, dividing the region into territories administered by India and Pakistan.

Article 370: As part of the accession negotiations, Article 370 was included in the Indian Constitution, granting special autonomous status to Jammu and Kashmir. 

Inclusion of Article 370 in the Constitution

Article 370 was included in the Constitution of India primarily to address the unique circumstances surrounding the accession of the princely state of J&K to the newly independent India in 1947. 

Key factors that led to the inclusion of Article 370:

  • Instrument of Accession: Maharaja Hari Singh signed the Instrument of Accession, agreeing to accede to India. Article 370 was seen as a temporary provision to honor the terms of this accession.
  • Autonomy and Special Status: J&K had a distinct cultural, religious, and political identity, and its leaders sought assurances that its autonomy and special status would be preserved within the Indian Union.
  • Negotiations and Compromise: The inclusion of Article 370 was a result of negotiations between the leaders of Jammu and Kashmir and the framers of the Indian Constitution. 
  • Temporary Provision: It was envisaged that over time, the special status of Jammu and Kashmir would gradually diminish as the state integrated further with the rest of India. 

Historical context of Article 370

The historical background of Article 370 spans several decades, from its inclusion in the Constitution of India in 1949 to its eventual abrogation in 2019. 

Here’s an overview of the key events and developments during this period:

  • 1949 (Inclusion in the Constitution): Article 370 was included in the Constitution of India primarily to address the unique circumstances surrounding the accession of the princely state of J&K to India in 1947.
  • 1950s-1960s (Expansion of Indian Laws): Over the years several presidential orders were issued to extend various provisions of the Indian Constitution to J&K, gradually integrating it with the rest of India. These included provisions related to citizenship, fundamental rights, and directive principles of state policy.
    • The Constitution (Application to Jammu and Kashmir) Order, 1954 extended Part III (Fundamental Rights) of the Indian Constitution to Jammu and Kashmir. 
  • 1954 (Special Rights and Privileges): In 1954, through a presidential order, Article 35A was added to the Constitution, which empowered the state legislature of J&K to define “permanent residents” of the state and grant them special rights and privileges, including the Right to own property and access to government jobs and scholarships.

Article 35A

Article 35A of the Indian Constitution was a provision that empowered the J&K state legislature to define “permanent residents” of the state and provide them special rights and privileges. It was introduced in 1954 through a Presidential Order, not directly enshrined in the Constitution itself.

Here’s a breakdown of what Article 35A entailed:

Special Rights for Permanent Residents: The J&K legislature could define who qualified as a “permanent resident” and grant them exclusive rights, including:

  • Ownership of immovable property within the state
  • Settlement within the state
  • Government jobs
  • Scholarships and other state benefits

Restricted Rights for Others:  People who weren’t classified as permanent residents had limited rights in J&K compared to Indian citizens elsewhere.

Abrogation of Article 35A: In 2019, the Indian government revoked Article 35A along with Article 370, which granted special autonomous status to J&K. 

  • 1960s-1980s (Political Developments and Strains): There were tensions between the central government and the state government over issues such as autonomy, governance, and representation. 
  • 1980s-1990s (Armed Insurgency and Security Concerns): In the late 1980s, J&K experienced the onset of armed insurgency, fueled by various factors including political grievances, economic disparities, and external influences.
    • According to the South Asia Terrorism Portal (SATP), the insurgency resulted in the deaths of over 40,000 people, including civilians, security forces, and militants.
  • 2019 (Abrogation): On August 5, 2019, the Government of India announced the abrogation of Article 370. 
    • According to Jammu and Kashmir Reorganisation Act, 2019, the state was bifurcated into two separate Union Territories: J&K, and Ladakh.

Process of Abrogation of Article 370

The abrogation of Article 370 and Article 35A involved a multi-step process, including legal, constitutional, and political actions:

  • Presidential Orders: On 5th August 2019, President of India in the exercise of the powers conferred by Clause (1) of Article 370 of the Constitution had issued the Constitution (Application to Jammu and Kashmir) Order, 2019. Through this, Government of India has made modifications in Article 370 itself (not revoked it). It has replaced Presidential Order of 1954.
  • Parliamentary Approval: Concurrently with the presidential orders, the Government of India introduced resolutions in both houses of Parliament. Subsequently, the Jammu and Kashmir Reorganisation Bill, 2019, passed by Parliament divides the state of Jammu and Kashmir into two new Union Territories (UTs): J&K, and Ladakh.
  • Presidential Assent: After being passed by Parliament, the bills were sent to the President of India for his assent. Once the President gave his assent, the bills became law namely Jammu and Kashmir Reorganisation Act, 2019.

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Need of Abrogation of Article 370

The decision to abrogate Article 370 was driven by several factors and perceived needs, according to the Indian government:

  • Integration: One of the primary reasons cited for the abrogation was to integrate the state of J&K more fully with the rest of India. 
  • Development: By revoking Article 370, the Indian government aimed to promote economic growth, infrastructure development, and job creation in the region, bringing it at par with other states in India.
  • Equality and Rights: Article 35A was criticized for being discriminatory and which prevented the full integration of the region’s residents with the rest of the country.
  • Security Concerns: The special status of J&K had been used to justify separatist movements and provided a legal framework for separatist sentiments. 
  • Political Will: The decision to abrogate Article 370 and Article 35A was also seen as a manifestation of the political will of the ruling party and government to fulfill its electoral promises and assert its vision of national unity and development.

Positive Impacts of Abrogating Article 370:

  • Integration with India: The removal of Article 370 allowed J&K to be fully integrated with the rest of India. It eliminated the special status that had kept Kashmir somewhat separate from the Indian legal framework.
  • Unified Constitution: Previously, Kashmir maintained its own constitution, distinct from the Indian constitution. Now, there is a single constitution for the entire country, promoting unity and uniformity.
  • Economic Opportunities: With the abrogation, Indian citizens can now invest in Kashmir, purchase land, and participate in economic activities. This can lead to economic growth, job creation, and increased educational opportunities. 
  • Equal Rights: The removal of Article 370 ensures that all Indian citizens, regardless of their location, have equal rights. It eliminates the distinction between Kashmiri residents and other Indians.
  • Infrastructure Development: The removal of Article 370 has opened up opportunities for infrastructure development in Kashmir. Investments in roads, bridges, and other essential facilities can now be made more effectively. 
  • Increased Tourism: The number of tourists visiting J&K has increased significantly since the abrogation of Article 370.
  • Educational Reforms: With the integration into the Indian education system, Kashmiri students now have access to a broader range of educational institutions and courses. This can lead to improved educational outcomes. 
  • Gender Equality: Previously, Article 35A had discriminatory provisions related to gender. Women who married non-Kashmiris lost their property rights. The abrogation ensures equal rights for women across the board.
  • Decline in violence: There has been a significant decline in violence in Jammu and Kashmir since the abrogation of Article 370.
    • According to official data, the number of terrorist incidents has decreased by over 50% and security forces have killed over 300 militants in the last four years.

Challenges Associated with Abrogation of Article 370

  • Strained Relations: The decision to revoke Article 370 strained India’s already delicate relations with Pakistan. The move was met with strong reactions from Pakistan, which claims parts of Kashmir. 
    • India and Pakistan downgraded their diplomatic ties following the abrogation. Pakistan expelled the Indian High Commissioner and suspended bilateral trade.
  • Practical Difficulties: Repealing Article 370 created practical difficulties due to the numerous presidential orders issued under it. The sudden change disrupted established systems and governance structures.
  • Security Concerns: Some people express concerns about security. The removal of Article 370 has instilled fear among certain sections of the population regarding their safety and stability. 
    • The Kashmir Institute of Conflict Studies (KICS) reported a rise in civilian fatalities in 2019 compared to previous years.
  • Local Autonomy Eroded: The special status granted by Article 370 provided a degree of autonomy to Kashmir. Its removal has led to concerns about the erosion of local decision-making power.
  • Social Unrest: The abrogation triggered protests and unrest in the region. Some Kashmiris felt their identity and rights were threatened, leading to tensions and clashes. 
  • Uncertainty and Legal Challenges: The legal implications of the abrogation are still being debated. There are ongoing legal challenges, and the situation remains uncertain.

Recent Developments Related to Article 370

The most recent development regarding Article 370 was the Supreme Court of India’s verdict delivered on December 11th, 2023. Here’s a breakdown of the key points:

  • Upheld Abrogation: The court upheld the central government’s 2019 decision to revoke Article 370, effectively ending the special status of J&K.
  • Temporary Provision: The judgement clarified that Article 370 was not a permanent right, and the President’s order applying it to J&K was modifiable.
  • Jammu and Kashmir Reorganisation Act Validated: The court validated the Jammu and Kashmir Reorganisation Act of 2019, which bifurcated the state into two Union Territories – J&K and Ladakh.
  • Statehood and Elections: The Supreme Court emphasized the need to restore statehood and recommended holding elections by September 2024.
  • Federalism Concerns: Justice Kaul, part of the bench, expressed concerns that bypassing the state legislature in the abrogation process set a worrying precedent for federalism in India.

Way forward 

  • Implementation of Statehood Restoration:
    • Timeline and Elections: The Supreme Court recommended statehood restoration with elections by September 2024. 
      • Defining a clear timeline, addressing logistical challenges, and ensuring security for conducting fair elections are crucial areas for further work.
    • Delimitation Commission Report: The Delimitation Commission report is a key step before elections. Addressing any concerns and ensuring a fair demarcation process is important.
    • Political Participation: Encouraging political participation across all sections of society in Jammu and Kashmir is essential for a smooth transition to statehood.
  • Addressing Security Concerns:
    • Normalization: This involves addressing security concerns, ensuring civilian safety, and fostering a peaceful environment.
    • Human Rights: There need to address potential human rights violations that may have occurred. Independent investigations and ensuring accountability are vital.
  • Long-Term Integration:
    • Economic Development: Focusing on economic development in Jammu and Kashmir, creating jobs, and improving infrastructure are important for long-term integration.
    • Social Cohesion: Promoting social cohesion and inter-community dialogue between different groups within Jammu and Kashmir requires ongoing efforts. 
      • For example, The Indian Army has undertaken an initiative named Operation Sadbhavana which involves various programs that promote interaction and trust-building between the army and Kashmiri civilians.
    • Addressing Grievances: Listening to and addressing any remaining grievances related to the abrogation of Article 370 can help build trust and a sense of belonging.
    • Open Communication: Maintaining open communication between the central government, state administration, and the people of Jammu and Kashmir is crucial for transparency and fostering trust.
    • Monitoring the Situation: Monitoring the situation on the ground in Jammu and Kashmir, including human rights concerns, and adapting policies based on feedback is vital for a successful transition.

Supreme Court Upholds Article 370 Abrogation 

The abrogation of Article 370 and Article 35A marked a significant turning point in the history of Jammu and Kashmir, with far-reaching implications for its governance, integration with India, and socio-political dynamics. Since the abrogation, there have been both positive developments and challenges. 

The Supreme Court of India’s recent verdict upholding the abrogation reaffirms the legality of the government’s actions and provides clarity on the status of J&K. Furthermore, the court’s emphasis on restoring statehood and holding elections by September 2024 signals a commitment to democratic principles and the empowerment of the region’s residents.

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Conclusion

However, challenges remain, including security concerns, social unrest, and the need to address grievances. Moving forward, it is essential to focus on restoring normalcy, promoting economic development, and fostering social cohesion in Jammu and Kashmir. The principle of Ek Bharat Shrestha Bharat, which promote national integration and unity, should guide efforts to strengthen the bonds between J&K and the rest of India. By embracing diversity, fostering dialogue, and addressing the needs and aspirations of all stakeholders, India can realize its vision of a united and prosperous nation. 

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Frequently Asked Questions

Article 370 of the Indian Constitution granted special autonomous status to the region of Jammu and Kashmir, allowing it to have its own constitution, flag, and autonomy over internal affairs.

Article 370 was abrogated on August 5, 2019.

Jammu and Kashmir got special status under the Article 370.

The empowerment of people, removal of unjust laws, and the introduction of equity and fairness are pivotal changes shaping the progress of the new Union Territories. These shifts aim to address historical discrimination, promote comprehensive development, and foster peace and progress in the regions.

Article 370 was removed through a presidential order issued on August 5, 2019, followed by the passage of the Jammu and Kashmir Reorganization Act in both houses of the Indian Parliament. This Act bifurcated the state of Jammu and Kashmir into two separate Union Territories: Jammu and Kashmir, and Ladakh.
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