J & K: Article 370

By Naveen Singh|Updated : August 4th, 2019

“You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But the Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it”

These were the words of the law minister, BR Ambedkar who refused to give assent to article 370 which was later incorporated by N Gopalswami Ayyangar on recommendation J.L Nehru.

Article 370 of the Constitution of India grants special status to the State of Jammu and Kashmir, which is a constituent state of the Indian Union.

The article is drafted in Part XXI of the Constitution. All the provisions of the Constitution of India do not apply to the State of Jammu and Kashmir. Also, Jammu and Kashmir is the only Indian state to have its own separate state Constitution i.e. the Constitution of Jammu and Kashmir.

The article that was meant to be a temporary provision but became permanent when the State's constituent assembly dissolved itself on 25 January 1957 without recommending abrogation/ amendment of Article 370.

Accordingly, the Indian Parliament needs the State Government’s cooperation for applying any law in the State except for three subjects surrendered to the Dominion of India at the time of accession. These are Defence, External Affairs and Communications.

Article 370 would cease to exist if President declares so on the recommendation of Constituent Assembly of the state.

The present relationship of the State of Jammu and Kashmir with the Union is as follows:

  1. J&K is the constituent state of the Indian Union, but its name, area or boundary cannot be altered without the consent of its legislature.
  2. Part VI of the Constitution of India (regarding State Governments) is not applicable to the state of J&K as it has its own Constitution and the administration works according to that Constitution.
  3. The residuary power to make laws belongs to the state except in a few matters. In addition to this, the power to make laws of preventive detention in the state belongs to the state legislature. In other words, the preventive detention laws made by the Parliament are not applicable to the State of J&K.
  4. The Fundamental Rights are applicable to the State but the difference is that unlike otherwise, the Fundamental Right to Property is still guaranteed in the state.
  5. Directive Principles and Fundamental Duties are not applicable to the State.
  6. If National Emergency is declared on the ground of internal disturbance, it would be ineffective in the State except with the cooperation of the state government. Also, the President has no right to declare a financial emergency in the State.
  7. The President cannot suspend the Constitution of the State on any grounds, even on the grounds of failure to act in compliance with the directions given by him.
  8. The Fifth and Sixth Schedule of the Constitution, dealing with administration and control of scheduled areas and scheduled tribes and tribal areas respectively do not apply to the State.
  9. The High Court of J&K unlike the High Courts of other states of India cannot issue a writ for any reason other than the enforcement of Fundamental Rights.
  10. The provisions of Part II of the Constitution regarding the denial of citizenship rights of migrants to Pakistan do not apply to the permanent residents of the state of Jammu and Kashmir.


The consequence of Article 370:

Due to this article, the Indians feel alienated to go the land which belongs to each citizen.

The citizens living outside India cannot buy land in J & K.

Any female citizen of J&K if marries any outsider is stripped of its rightful ancestral land.

What if Article 370 is repealed?

Repealing Article 370, which was prescribed in the constitution as a temporary provision has been a debatable issue since then.  

The govt if wants in its full capacity can repeal article 370, but thus abrogation could lead to serious consequences:

  1. If Art 370 is repealed, then there might be chances that the foreign powers such as Pakistan and China would try and influence people of the valley against India to start protesting against the government.
  2. There might be serious repercussions as it will lead to a rise of militancy in Kashmir with greater vigor as people would think it as an act of pressuring them.
  3. The image of India being an exemplary democracy would take a severe beating and parallels would be being drawn with countries like Isreal which has forcefully occupied Palestine. 

Way Out:

The way out of such a situation is the amendments that are being previously done:

Frequent Confidence Building Measures such as Operation Sadhbhavana by the Indian Army would build trust and faith amongst the people of the country.

Somehow, the arguments in favor and against the abrogation of Article 370 are equally valid and perfectly balanced. People arguing for abrogation of the Article say it has created certain psychological barriers between the state and the rest of the country thereby making it the root cause of all the problems.

Article 370 raises doubt on the union of the state with India. In a way, Article 370 encourages secessionist activities in the country. It constantly reminds that the state of Jammu and Kashmir is yet to merge completely with India.

It is the time to construct a logistic interpretation of the article, keeping in mind the intention of the framers of the constitution.

The framers of the constitution must have incorporated a provision for the amendment with an intention to provide a bit of flexibility to keep pace with ever-changing needs and functions of society.

They never intended to bestow the operation of the constitution with complete rigidity. It is true that the Amendment of Article 370 in present circumstances is nothing else but a myth.

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