PROJECT REPORT ON

ARTICLE 370; AN ADVANTAGE OR DISADVANTAGE

PROJECT REPORT SUBMITTED TOWARDS FULFILLMENT OF THE SUBJECT :

‘CONSTITUTIONAL LAW-II’

Under the guidance of : Prof. K.L. Bhatia

Prepared by : Rajeev Ranjan

Roll No.-1360
6th Semester,3rd Year

CHANAKYA NATIONAL LAW UNIVERSITY

 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

ACKNOWLEDGEMENT
I am using this opportunity to express my gratitude to everyone who supported me
throughout the course of this Constitutional Law II. I am thankful for their aspiring
guidance, invaluably constructive criticism and friendly advice during the project work. I
am sincerely grateful to them for sharing their truthful and illuminating views on a number
of issues related to the project.
First, I would like to thank our professor for his exemplary guidance, monitoring and
constant encouragement throughout the course of this project. I would also like to express
my deep gratitude to his for his valuable and constructive suggestions. The contributions
made by my classmates and friends are, definitely, worth mentioning. I would also like to
express my gratitude towards the library staff for their help.
Last, but far from the least, I would express my gratitude towards the Almighty for obvious
reasons.
Rajeev Ranjan

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

AIMS AND OBJECTIVE

The objectives of Researcher are-

• To understand the concept of Article 370
• To analyze the need of the concerned Article

RESEARCH METHODOLOGY
For the purpose of research, the researcher has relied on various doctrinal methods.

SOURCES OF DATA
The Researcher has referred to primary as well as secondary data.
• PRIMARY DATA: The Researcher has referred legal provisions, case laws
and law commission reports statistical and authentic data for the purpose of
primary data.
• SECONDARY DATA: The Researcher has referred to books, articles,
journals, websites and newspaper for the purpose of secondary data.

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

TABLE OF CONTENTS

RESEARCH METHODOLOGY……………………………………………...... 03
1.INTRODUCTION. …………………………………………………………….. 05
2 DISCUSSION…………………………………………………………………… 07
3.IMPORTANCE OF ART.370…………………………………………………... 09
4. LANDMARK JUDGEMENTS AND
PERCEPTION…………………………………………………………………….. 11
5. CONCLUSION…………………………………………………......................... 15
Bibliography……………………………………………………………………….. 16

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

INTRODUCTION

Bernier the first European to visit Kashmir wrote in 1665: “In truth the kingdom of Jammu and
Kashmir surpasses in beauty all that my warmest imagination had anticipated. The splendor and
salubriousness of the Kashmir valley is legendary, one of the greatest Hindi poet kalidas once said
that Kashmir is more beautiful than the beauty of heaven and is a source of supreme bliss and
happiness” Jammu & Kashmir is a state in the northern part of the Indian subcontinent. The
Mughal emperor Jahangir once said while living in a houseboat in dal lake “gar firdaus, ruhe zamin
ast, hamin asto, hamin asto, hamin ast” which means if ever there is heaven on earth, it’s here, it’s
here, it’s here. Most part of this beautiful state is in the Himalayas, it shares international borders
with Pakistan and china because of which this state faces a lot of insurgencies and conflicts. In
history also J&K has always been in conflict, a lot of ruler’s ruled the land of J&K. as it is rightly
said nothing is perfect in this world this state has gotten everything still for the people of Jammu
and Kashmir finding peace is a rare thing. Ashoka’s empire flourished in this state which is evident
from the historical records of the stupa’s, and the Buddhist temples, another is of the great Scythian
ruler kanishka and after that of mihirkula.1
The genises of the demand for the new constituent assembly can be traced in the struggle which
the Indian nationalist leaders faced during the time of independence, the demand for the constituent
assembly by the congress was made by the national congress in 1934 and there after in all of their
resolutions, this demand of a constituent assembly was always resisted by the britishers until the
outbreak of world war II when the external circumstances forced them to think upon giving India
independence and solving their constitutional problem, after the visit of Sir Stafford Cripps and
after a lot of negotiations it was finally decided that an elected body of Indians should frame the
constitution of India to make India autonomous, finally the British government on 11th march 1942
declared to set up a constituent assembly to set up a constitution for India after the end of world
war II.
While the Britishers were ruling in India, India was divided into two parts British India and Indian
India, British India consisted 2/3rd of the total land and population and Indian India consisted of
the remaining 1/3rd , the British India was divided into 12 provinces and the Indian India was
divided into 564 princely states, there existed British paramountacy over the princely states which
lapsed with the Indian independence act of 1947. Now the problem of bringing the princely states
emerged where most of the princely states completely ceded to the union of India except
Hyderabad, Kashmir, junagarh and two insignificant ones, the agreement establishing the
relationship between the union and the states laid down that the states can on their own frame their
constituent assembly which was not a plausible idea as they all lacked proper direction and

1
web.stanford.edu/group/hsc/kashmir/History%20of%20Kashmir.pdf

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

functioning, still the state of Mysore, Travancore and cochin and saurashtra made their constituent
assembly, in 1948 BN Rau was chosen to head the committee to make a model of constitution for
the states, the committee made a model constitution and was ready but after a meeting of the prime
ministers of the states it was decided that this was not a good idea, finally this scheme became
obsolete, it was consented between the states and the union that ratification of the constitution will
be done by the raj pramukh or the ruler on the basis of the resolution adopted by the constituent
assembly of the union or the state where such body existed,the process of integration started and
in this whole process of integration of states one state acted differently, the state of J&K, all other
states adopted the constitution and were merged with the nation’s integral part the state of J&K
expressed inability to the constituent assembly and asked to extend the instrument of accession till
the state’s constituent assembly had taken a decision in the matter, the merger of Hyderabad and
junagarh was also problematic. After the accession of J&K with India the matters of external
affairs, defence, communications were transferred to the government of India and the parliament
of India was only allowed to make laws relating to these three matters only. It retained its autonomy
keeping the door open internal sovereignty was in the hands of the ruler itself which is clearly
stated in the clause 8 of the instrument of accession.
CLAUSE 8 of the instrument of accession states: -
[Nothing in this instrument affects the continuance of my sovereignty in and over this state, or as
provided by or under this instrument, the exercise of any powers, authority and rights now enjoyed
by me as ruler of this state or the validity of any law at present in force in this state].2
This position has been reiterated in the case of prem nath kaul vs. state of Jammu & Kashmir in
which the court said that the execution of the instrument did not affect in any manner the
legislative, executive, and the judicial power in regard of the government of the state, which then
vested in the ruler of the state. Again in the case of rehman shagoo vs. state of Jammu & Kashmir
in which the court said that, though certain subjects were given to the government of India by the
instrument of accession, the state had its own power to legislate even on those subjects as long as
it does not go against the central legislature.
So in all the government of Jammu & Kashmir did not accept the newly made Indian constitution
as a constitution for itself, even after becoming a part of India the state is governed by the Jammu
& Kashmir Constitution Act 1939. An interim arrangement was made for this state in the
constitution of India, article 306-A was introduced and then formally added to the constitution of
India as article 370.

2
http://shodhganga.inflibnet.ac.in/bitstream/10603/32675/8/08_chapter%204.pdf

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

DISCUSSION

The constitution of India came into force on 26 January, 1950 and from then onwards the state,
Jammu and Kashmir enjoys a special status if compared with the other states of India. It is Article
370 (article 306 A in the draft) of the constitution of India which provides special and autonomous
status to the state of Jammu and Kashmir. Article 370 is drafted in amendment of the Constitution
section, in Part XXI, under Temporary and Transitional Provisions. It is article 370 which provides
a constitutional link between India and the state of Jammu and Kashmir. The parliament is said to
be the law maker in India but in the matter related to Jammu and Kashmir, the parliament has to
take approval from the state while passing any law, ordinance or an act except in the matters related
to Foreign Affairs, Defense, communication and ancillary. Because there’s separate law regarding
ownership of property, citizenship etc. as compared to the other Indian States i.e. why a person
from other state cannot buy any property in the state of Jammu and Kashmir.3
Financial Emergency under article 360 can never be imposed in the state of Jammu and Kashmir
by the Centre under article 370. War or external aggression is the only situation in which the Centre
can declare emergency in the state of Jammu and Kashmir. This means that the union cannot
declare emergency in the state if there’s any internal disturbance but can declare emergency if
there’s any imminent danger with the request made to the running state government.

Article370 provides 6 provisions to the state of Jammu and Kashmir:

1. The state is exempted from any other laws of the constitution provided for the governance
of the states.
2. The Parliament’s legislative power over the state of Jammu and Kashmir is subjected to
three subjects- external affairs, defense and communications.
3. If the Centre wants to extend other constitutional provisions or union powers in the state,
Centre has to take the prior concurrence of the state of Jammu and Kashmir.
4. The concurrence received has to be ratified by the State’s Constituent Assembly.
5. The authority of the state government to give concurrence lasts only when the state’s
constituent assembly is convened.
6. Only the President is empowered to make an order amending or abrogating it.
Amendment under 368 would be applicable only when it is applied by the order of the
President

3
www.oxfordscholarship.com/view/10.1093/acprof:oso/.../acprof-9780198074083

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

Loopholes in the Article 370:

1. In article370 (3) the President may by notification declare that this article shall cease to be
operative, but the article also clearly points out that the president has to acquire the assent
of the state’s constituent assembly before passing such notification. It is not a matter of
concern that the constituent assembly of Jammu and Kashmir can never give assent to such
notification. In that view Parliament cannot exercise its power given in the article 368 to
amend or withdraw the article 370 of the constitution.
2. Article 368 of the constitution also limits the power of the Parliament to make any
amendment to the provisions listed in the constitution which can result in the change in any
of the lists in the seventh schedule, and that amendment has to be ratified by the legislature
having majority not less than that of half of the states.
3. India has a system of single citizenship but the residents of Jammu and Kashmir enjoy dual
citizenship which completely violates Citizenship Act.
4. Majority of Indian laws are not applicable in the state of Jammu and Kashmir. RTI, CAG,
RTE are example of the same.
5. It grants Jammu and Kashmir to have a constitution of its own.
6. Centre has to take the concurrence of state’s constituent assembly before passing any law
or act in the state.
7. The boundary of the state and name cannot be altered as it can be altered in rest states of
India.
8. In Article 370(3) it is provided that the article can only be changed or removed by the
recommendation given by the state’s constituent assembly.

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

Why article 370 was incorporated, can article 370 be abrogated?

First, why it was incorporated in a constituent assembly on October 17, 1949, great thinker and
poet, Maulana Hasrat Mohini asked: “why this discrimination please?” by this statement he meant
why to treat Jammu and Kashmir as a special state and why to provide it special provisions and
not the other states of the union of India. When it is already stated in the Article 1 that India, that
is Bharat, shall be a union of States then there’s no need to treat Jammu and Kashmir as a separate
state as it would create discrimination and which would be unconstitutional. Answer to this
question was given by Jawaharlal Nehru’s second half Gopalswami Ayyangar. He argued that
Kashmir unlike any other princely states was not yet fully developed for unification. India at that
time was at war with Pakistan on the matter of Jammu and Kashmir and the conditions were still
abnormal and unusual because of the ceasefire and most of the part of the territory was in the hands
of the rebellions and enemies. International light on the matter of Jammu and Kashmir has been
brought up by the UN and its involvement would end only when the problem of Jammu and
Kashmir is resolved satisfactorily.
Second, can article 370 be abrogated? This has been a very debatable question. In general, the
narratives of the Indians are that, Jammu and Kashmir has always been the integral part of India
that’s why it does not make any sense in providing further special status to the state. Jammu and
Kashmir should also be acceded and integrated when thousands of other princely state had? Why
is it that the Kashmir needs special status?
But the major concern that has to be kept in mind is whether article 370 has alienated the people
living in the state of Jammu and Kashmir and whether the article 370 has benefitted the state
socially and economically?
From a Kashmiri’s point of view, they were forced to marry the person they do not desire and the
separatist desire to divorce or annul this marriage. The others pointed out that the marriage was a
marriage of convenience and they need to the terms and conditions laid down prior to the marriage
in order to remain married.
Overall, there’s a lack of trust between the two parties to have a genuine discussion over the cause.
And in certain cases India has been different to the people of Jammu and Kashmir. It has failed to
take measures for political and social integration and at times to crack the whip with clever politics,
and in certain extreme cases, even force. Not taking proper action against the excessive measures
taken by the AFSPA has created a deep rooted sense of segregation and alienation in the mind of
the people living in the state of Jammu and Kashmir. People of Jammu and Kashmir also need to
realize that India as a whole does not holds any ill will towards the people of Jammu and Kashmir
and they are also a part of India as are the people of other states. I believe we would be able to
solve the issues if we try to address these concerns proactively so that Article 370 becomes
absolutely irrelevant.
One of the major problem in the revocation of this article is in point 3 of the article 370

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

Point 3 in the article 370 states: -

Notwithstanding 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:
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.
Looking at this we can say that there is a conundrum in removing this article as it itself states
(notwithstanding anything else in the constitution) that it cannot be revoked without the
recommendation of the constituent assembly of the state which as of now does not exist.

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

Landmark Judgments:

1. Prem Nath Kaul v.State of Jammu and Kashmir, 1959 AIR 749
It is one of the leading and earliest cases regarding the impact of article 370 which was to be
decided by the honorable Supreme Court. Supreme Court in this case traced the passing of power
from the hands of Maharaja Hari Singh to the successor. The court held that the power of Maharaja
in no way are reduced and nor the court is trying to impose the President’s will on the state but it
wanted to establish the relationship that the state would like to have with India by giving powers
that are vested in the state’s constituent assembly. It also checked that the longevity of the exercise
of powers conferred on the Parliament and the President by the relevant temporary provision of
Article 370 made tentative on the final approval by the said Constituent Assembly in the said
matters.
2. Sampat Prakash v. State of Jammu and Kashmir, 1969 AIR 1153, 1969 SCR(3) 574
The article 35(c) of the constitution of Jammu and Kashmir, Constitution order, 1954, had given
protection to any law relating to preventive detention in the state against invalidity on the ground
of violation of Fundamental Rights as guaranteed by the Constitution in part III for a period of 5
years.
But in 1959 the period was extended to ten years and in 1964 it was extended to fifteen years
by the Presidential Orders. Hence, the issue was raised on this fact of extending the period from
five to ten then to fifteen years contending that it is violating Article 370(1) and president cannot
exercise this power. Article 370 could only have been effective when until the constitution of
Jammu and Kashmir was framed and after that it must be held to become ineffective to become
ineffective that any modification made by the president subsequent to the enforcement of the
constitution would be without the authority of law. Supreme Court rejected the argument by
stating, because the situation had existed when article 370 was incorporated in the constitution and
is hardly altered hence it will continue to remain in force and the motto of introducing this article
was to provide power to the president so that he can exercise his discretion in applying the
constitution and in reference to article 368 the amendment under article 368 would not apply to
the state of Jammu and Kashmir unless it is exercised by the President of India under Article 370
(1).
3. State Bank of India v/s. Santosh Kumar Gupta & Anr.
Brief facts: This appeal was filed against the decision of J&K High Court which held that
provisions of SARFAESI are not applicable to the state of J&K because its outside the legislative
competence of Parliament, as they are in conflict with Section 140 of the Transfer of Property Act
of Jammu & Kashmir, 1920.

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

Issue: Whether SARFAESI in its application to the State of Jammu & Kashmir would be held
to be within the legislative competence of Parliament?
Arguments of appellant:
1. SARFAESI is framed under entry 45 and 95 of List 1 of schedule 7 and no relevance of list 2
or list 3 entries because all provisions of SARFAESI deals with banking activites.
2. Pith and substance of the act must be considered to make it applicable to Jammu and Kashmir
which implies that it does not relate to transfer of property in its true sense.
3. Article 1 of the Indian constitution and section 3 of the J&K constitution make it clear that India
is India is a union of states and J&K is an integral part of it.
4. The powers of parliament are not limited by virtue of article 370(1)(b) because the presidential
order of 1954 has made the issue clear.
Arguments of Respondent:
1. Constitution of India and Jammu & Kashmir have equal status and none is subordinate to the
other.
2. According to pith and substance SARFAESI relates to property which is a subject matter of
state legislature only and power of parliament is restricted by Article 370(1)(b).
3. Section 140 of J&K TOPA is in direct conflict with section 13 SARFAESI hence TOPA of J&K
must prevail. Property of a resident of J&K cannot be transferred to a non-resident merely because
SARFAESI says so.
4. Section 17A and 18B relates to administration of justice which is under list 3. And Article 35A
of constitution has established rights towards property in J&K.
5. Article 370 is a non-obstante clause which prevails over the entire constitution even though it is
a temporary provision that does not negate its effect. Parliament need concurrence of J&K
assembly before applying any statute in J&K.
Decision: Appeals allowed, Decision of High court overruled.
Held – SARFAESI Act has to be read with constitution of India and constitution of Jammu &
Kashmir. Constitution of India is superior to the Constitution of J&K. Provisions of SARFAESI
Act are applicable to the State of J&K.

Breach of Article 370:

Ajay Kumar Pandey v. State of Jammu and Kashmir 19 July, 2016.
SC in this case allowed the petition of transfer of a criminal case from the state of Jammu and
Kashmir to the other state wherein the former judges pointed out that under law have no such

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

power to transfer cases from Jammu and Kashmir to the courts outside state. Former Delhi High
Court Chief Justice Rajinder Sachar pointed out that SC has no such power to do so because the
power to transfer the case from one state to another as provided in Section 25 of the Code of Civil
Procedure and Section 406 of the Code of Criminal Procedure does not extend to the state of
Jammu and Kashmir, nor do the Kashmir Code of Civil Procedure, 1977 contains such provision
which is clearly a violation of Article 370. He further added that bench ruling in this case has
nullified the mandatory provision of Article 370 particularly when the legislatures of Jammu and
Kashmir has specifically provided that no court shall have the power to transfer case from Jammu
and Kashmir to the other.
“Article 370 in the Constitution is an article of faith and as such the autonomy of Jammu and
Kashmir under it should not be trifled with” – Justice Rajinder Sachar.
Why such a controversy regarding this:
The controversy these days regarding this article is on the aspect of revoking this article, firstly if
this article is revoked then it will bring the state of Jammu & Kashmir at par with the other states
as some people think that being a part of the union of India this state must also be same as other
states, why provide special status! let us look at the changes that will be brought to this state if this
article is revoked: -
1) The dual citizenship given to the people of this state will be removed.
2) The state will have to abandon their flag and accept Indian flag.
3) They will have to respect national flag and national symbols, as currently its not a crime in
Kashmir if we insult Indian flag or symbols.
4) Orders of supreme court will be valid in this state as currently they are nt.
5) Parliament of India will be able to make laws regarding more subjects as compared to now
on only three (Defence, external affairs, communication).
6) Right to information and right to education will start to be applicable.
7) Comptroller and auditor general(CAG) will start to apply.
8) Shariat law will be revoked.
9) Outsiders will be able to own property in Kashmir.
10) Panchayats have no authority in Jammu & Kashmir.
The right wing of the Indian politics like Hindu rightist: Bhartiya Janata party and organisations
like VHP, RSS have been demanding to abrogate this article, these people give reasons like
national integration with a slogan “One Nation, One Citizenship, they say by integrating to the
union of India it will enjoy better fruits of development, a lot things would be taken care of like
insurgencies, and terrorist attacks.
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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

Whereas the people supporting this article particularly the local parties of Jammu and Kashmir
give reasons like that scrapping this article will lead to the exploitation of the J&K people and they
ask for greater autonomy must be provided to them.
Now let us look at some more arguments in favor and against this article: -
In Favor:
1) While signing the instrument of accession it was said that the people of the state, through
their own constituent assembly, would determine the internal constitution and the
nature and extent of the jurisdiction of the India union over the state, hence it goes
against the spirit of commitment that the government of India made, and will lead to a lot
of unrest and polarization.
2) India being the world’s most exemplary democracy will spoil its image and would be
portrayed as an aggressor in the global community if it fails to abide by the UN resolution
5th January 1949 which stated that the accession to India will be decided by a fair and
impartial plebiscite.
3) Abrogating this article will only create unrest and law and order problems and hence no
investor would will to invest in a problematic environment.
4) Countries like Pakistan will get an opportunity to renew jihad from their land with more
energy.
Against:
1) The state will be benefitted by the central government schemes, especially for the
underprivileged people.
2) Infrastructure of the state would be improved, employment would be generated because of
the schemes like MNREGA, better public distribution system through schemes like direct
cash transfer.
3) Development because of the investment that would be generated because of the peaceful
environment.
4) Growth and prosperity will lead to decreased incidents related to militancy.
5) A lot of abundant natural resources can be explored.
6) Also the points stated above that what changes will come if this article is abrogated will
help in the development of the state.

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 ARTICLE 370: AN ADVANTAGE OR DISADVANTAGE

CONCLUSION
This article must be revoked as soon as possible and the BJP government is right in taking steps to
remove this article, there may be many an arguments supporting the article 370 if we think upon the
above stated changes if the article is revoked, we can see that this article in every sense acts as a huge
barrier between the relationship of the Kashmiri people and Indian people, in the name of this
article people are deprived of their rights which they are guaranteed by the constitution. The day
article 370 is removed, the Kashmir problem would be solved, all the problems that Kashmir is
facing is due to the poor administration of the state, since a very long time it has been granted this
special status and it has done more harm than good, bringing this state completely under Indian
union will help in proper administration of this state. This article is the one of the reason of the
separatism between India and Jammu & Kashmir, now it is upon the people to think that this article
should be supported or not.

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BIBLIOGRAPHY
BOOKS :
1. Jain M.P, Indian Constitutional law,7th edition, Lexis Nexis Publication.
2. Pandey Dr. J.N., Constitutional law of India,52nd edition,2015, Central Law PublicatioN.
3. Singh Pal Mahendra, V.N.Shukla’s Constitution of India,12th edition, Eastern Law
Publication.

WEBSITES :
1. blog.mylaw.net/article-370-historical-context-and-the-text-should-inform-any-debate-...
2. www.indiandefencereview.com › News › Homeland Security
3. www.thehindu.com › Opinion › Lead
4. www.oxfordscholarship.com/view/10.1093/acprof:oso/.../acprof-9780198074083
5. web.stanford.edu/group/hsc/kashmir/History%20of%20Kashmir.pdf

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