This article is written by Tushar Soni, a student of Jindal Global Law School.
This article talks about the history of how and why the Instrument of Accession was formed and analyses how Article 370 is de-operationalized by the central government of India while talking about the laws relating to permanent citizens and their right in the state. This research also explains in depth about what Article 370 and Article 35A are in the constitution of India.
It explains how certain provisions of this Article helped the Indian government to revoke autonomy from the princely state of Jammu and Kashmir and divide it into two union territories in the country using the IoA or the Instrument of Accession and restricting ‘special status’ in the state. This article also clears the debate of whether it is an abrogation or de-operationalisation of Article 370. It also talks about how Jammu and Kashmir is an integral part of India and that it has not pledged sovereignty to the country.
The Union Territory of Jammu and Kashmir is regarded as an integral part of India. It acceded to the Dominion of India on 26th October, 1947 vide an ‘Instrument of Accession’ signed between Maharaja Hari Singh, the then ruler of the princely states of Jammu and Kashmir, and the Government of India in the midst of military aggression to capture the state by the Islamic Republic of Pakistan.
It is well known that at the time when the Instrument of Accession was signed between the Princely state of Jammu and Kashmir and India, there were 2 distinct kinds of territories in the country:
- Territories under direct control of the British Administration;
- Princely States which were the subsidiary allied territories governed by their de jure rulers and overseen by a British Resident.
The instrument of accession was thus an agreement between two separate territories/countries who decided to work together on defence, external affairs and communications.
On 17th October 1949, Article 370, a temporary provision, was incorporated in the Indian Constitution providing Jammu and Kashmir with a ‘special status’ thereby restricting the Indian Parliament’s legislative powers in the respect of Jammu and Kashmir until a plebiscite in Jammu and Kashmir is conducted. By conferring a ‘special status’ within the Indian Constitution, the state of Jammu and Kashmir were allowed to have its own constitution and permitted the utilization of central laws in Jammu and Kashmir just with the consent of the state legislature. Such autonomy was unprecedented in the Indian political framework and was an interesting aspect of Indian federalism as it set up an uncommon connection between India and Jammu and Kashmir.
The article in itself states the process of removal of the special status as well, which can be done by the president as and when he wants by issuing a public order stating its removal, although before doing so the constituent assembly of Jammu and Kashmir must grant the permission for the same. The constituent assembly aforementioned had already been dissolved in 1957, since the existence of such an assembly came into question the removal of Article 370 was in a deadlock.
It is important to mention that while dealing with accession of all princely states in into India, the Government of India had a flat policy of respecting the desire of the residents of the princely state before completing acceding the territory to India. Infact, the last Governor-General of India Lord Mountbatten stated in reply to the letter of Maharaja Hari Singh that “it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people”.  Thus portraying the boundaries of operation accepted by India and the fact that India regarded the accession as just temporary and provisional until a proper plebiscite conducted in the valley.
Article 370 and Article 35A of the Constitution of India
Article 370 of the Indian Constitution reads as follows:
“370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution,
(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to:
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, 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 Maharajas Proclamation dated the fifth day of March, 1948;
(c) the provisions of Article 1 and of this Article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon
(3) Notwithstanding anything in the foregoing provisions of this 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 specify: 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”
Article 370 of the Indian Constitution provided temporary provisions restricting the Indian Parliament’s legislative powers under the Indian Constitution in the state of Jammu & Kashmir. Article 370(3) further stated that it is mandatory to take assent from the Constituent Assembly of the state before making any modifications with regards to the Article giving such special status to the stated of Jammu and Kashmir.
Article 35A further went on to allows the Jammu and Kashmir legislature to define permanent residents of the state and confer ‘special status’ upon the state. It is pertinent to mention that Article 35A is the direct consequence of the autonomy given to Jammu and Kashmir under Article 370. It only arises from the existence of Article 370. Article 35 A of the Indian Constitution reads as follows:
“35A. Saving of laws with respect to permanent residents and their rights-
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and law hereafter enacted by the Legislature of the State
(a) defining the classes of persons who are or shall be permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges, or imposing upon other persons any restrictions, as respects:
- Employment under the State Government;
- Acquisition of immovable property in the State;
- Settlement in the State; or
- Right to scholarships and such other forms of aid as the State Government may provide shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part”.
It is due to the non-existence of constituent assembly that recommended insertion of Article 35A in first place that the temporary provision of Article 370 became permanent thus dissolving the basic reason behind its own existence and sustaining indecisiveness of the State of Jammu & Kashmir to either be fully integrated with India or attaining sovereignty from both India and Pakistan in this case.
De-operationalisation or Abrogation of Article 370 of the Indian Constitution?
After staying in pendency for about 70 years of the independence of India, the central government in 2019 instituted an innovative way to de-operationalize Article 370 of the Indian Constitution without having to abrogate the Article as a whole. They virtually de-operationalized article 370 by superseding the presidential order of 1954.
The government used its powers under Article 370(1) to make amendments to Article 367 of the constitution. Provision 1 of Article 370 stated government of state as a person recognized by the President of India and recommended by the legislative assembly, to be the “Sardar-i-Riyasat” which was later changed to “Governor” using Article 367 of the constitution. The government went ahead and substituted the “constituent assembly of state’ to ‘the legislative assemble of state” under provision 3 of Article 370.
The central government made a strategy which meant that the substitute of the constituent assembly, which is the legislative assembly could be used by the parliament of India under the President’s rule. This would mean that the power of de-operationalization of Article 370(3) would be under the President’s rule and the parliament would have de facto control over the legislative assembly.
It is pertinent to reiterate that such amendment in the Indian constitution only lead to the de-operationalization of the Articles granting special status to the Jammu & Kashmir and did in no way result in its abrogation. The amendments are currently under judicial scrutiny at the Supreme court of India.
Owing to the amendment of the Indian Constitution and the subsequent result of de-operationalisation at the very core of it Article 370 has eroded and is just a shell now. Changes of words were made in 367 to change interpretation of Article 370. Jammu and Kashmir has been given a lower status than the other states and they have also lost special status in the country. India now has 28 states instead of 29 states. Kashmir will now have a Lieutenant governor like Delhi and not have a regular governor.
Jammu & Kashmir Constitution states it to be an integral part of India
It should also be noted that Article 3 of the constitution of Jammu and Kashmir declares itself to be an integral part of India. In the Preamble of the Constitution of Kashmir, there is no claim to sovereignty just like India and there is a categorised acknowledgement about the object of the constitution of Jammu and Kashmir which states “to further define the existing relationship of the state with the Union of India as its integral part thereof“. (emphasis supplied). The people in Jammu and Kashmir are also referred to as “permanent residents’ and not ‘citizens”. Therefore, due to Article 370 and Kashmir’s Constituent Assembly’s decision to remain in the Indian union, the constitution of Jammu and Kashmir didn’t proclaim sovereignty of the state.
The fact is that 94 out of 97 entries in the Indian Union list are applicable to Jammu and Kashmir. Therefore, on the 94 applicable entries, the Indian Parliament can already exercise its exclusive powers to pass laws that will have to be applicable to Kashmir, just like any other state in India. There are 260 Articles out of 395 Articles in the Indian Constitution that have been extended to the state of Jammu and Kashmir. There are 23 schedules in the Indian constitution and 7 have been extended to the state as well.
Article 370 is definitely not an issue of integration of state but an issue of granting autonomy to the state or federalism. According to me, the people who advocate for its deletion are concerned with uniformity and not integration which are two different concepts. If a state preserves its diversity and grants autonomy, it might lead to lasting integration as in this case.
Reference KASHMIR INDIA AND PAKISTAN MOHAMMAD ABDULLAH – Foreign Affairs Vol. 43, No. 3 (Apr., 1965), pp. 528-535 (8 pages) Published By: Council on Foreign Relations
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: