RESEARCH PAPER

Article 370, An Advantage or a Disadvantage

CONSTITUTIONAL LAW I
SUBMITTED TO
SRISHTI VAISHNAV
ASSISTANT PROFESSOR
INSTITUTE OF LAW NIRMA UNIVERSITY

SUBMITTED BY
ADITYA SHUKLA
15BAL002
SUMIT MISHRA
15BAL026

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 ABSTRACT

Article 370, An Advantage or a Disadvantage

Indian constitution is one of the most efficient written constitution that any country has ever
produced. It is a mixture of various other constitution’s, the constitution maker’s had to be
very prudent while making the draft of the constitution because of the diversity India contains
inside. Every state in India is unique and has its own diversity but the most beautiful and the
most diverse and focus attracting state is in the northern end of the country India. Article 370
talks about the special status that has been given to the state of Jammu & Kashmir.
This purpose of this paper is intended towards exploring a lot of puzzling questions, starting
from the history of Jammu & Kashmir, towards what was the need to incorporate this article
what circumstances led to the introduction of this article, why this article has been a
controversial subject, also this paper would and ending with the conclusion which will tell us
that the existence of article 370 should be supported or not, in all article 370 would be dealt
in in every important aspect.

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

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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.
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 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

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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].1
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.

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

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

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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.
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

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.

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 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.

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

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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
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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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).

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Breach of Article 370:

1. 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 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.

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 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.
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.

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 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.

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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