On August 5, 2019, Union Home Minister Amit Shah introduced a resolution in the Rajya Sabha to change the constitutional status of Jammu and Kashmir under Article 370 of the Indian Constitution. The move marked a major turning point in the history of the region.

Article 370 had provided Jammu and Kashmir with a special constitutional status, allowing it a degree of autonomy in certain matters. The Union government proposed ending this special status and making the provisions of the Indian Constitution applicable to Jammu and Kashmir without the previous exceptions.

Here is a look at Article 370, its historical background, the special provisions it provided, and the major changes proposed by the government.

What Is Article 370?

Article 370 was included in Part XXI of the Indian Constitution, which deals with temporary, transitional and special provisions.

It established a special constitutional arrangement for the former state of Jammu and Kashmir. Under this arrangement, Parliament’s power to make laws for the state was initially limited to certain subjects, including defence, foreign affairs and communications, as specified in the Instrument of Accession and subsequent constitutional arrangements.

For many other matters, the extension of central laws required the concurrence of the Jammu and Kashmir government, subject to the applicable constitutional provisions.

Article 370 was introduced during the period when Jammu and Kashmir was integrating with India following Partition in 1947. It was an important part of the constitutional relationship between the state and the Union government.

How Did Jammu and Kashmir Join India?

In 1947, British India was partitioned into India and Pakistan. Jammu and Kashmir was then a princely state ruled by Maharaja Hari Singh.

The Maharaja initially sought to maintain the state’s independence. However, in October 1947, armed tribesmen supported from Pakistan entered the region.

Faced with the invasion, Maharaja Hari Singh sought military assistance from India. He signed the Instrument of Accession on October 26, 1947, and India accepted it on October 27, 1947.

The Instrument of Accession provided for India’s authority over specified subjects, including defence, external affairs and communications. The subsequent constitutional relationship between Jammu and Kashmir and India developed through further legal and constitutional arrangements.

Article 370 became a key part of that relationship.

What Special Provisions Did Article 370 Provide?

Before its effective abrogation in August 2019, Article 370 established several distinctive constitutional arrangements for Jammu and Kashmir.

1. Special Constitutional Status

Jammu and Kashmir had a special constitutional position within India. The Indian Constitution applied to the state with certain modifications and exceptions under the constitutional framework then in force.

2. Parliament’s Legislative Powers

Parliament could legislate on specified subjects, including defence, foreign affairs and communications. The extension of laws concerning other matters generally involved additional constitutional procedures and, where required, the concurrence of the state government.

3. Separate State Constitution

Jammu and Kashmir had its own state constitution, adopted in 1956 and brought into effect in 1957. This was an unusual feature of its constitutional arrangement within India.

4. Land and Residency Rules

Separate state laws restricted certain property rights for people who did not qualify under the state’s residency rules. Article 35A, introduced through a presidential order in 1954 under the Article 370 framework, provided a constitutional basis for special protections concerning permanent residents.

These arrangements were changed following the 2019 constitutional orders and related legislation.

5. Application of Central Laws

Many provisions of the Indian Constitution and central laws had been extended to Jammu and Kashmir over the years through constitutional orders. However, the process differed from that applicable to other states.

It is therefore inaccurate to say that Indian laws or the authority of the Supreme Court did not apply to Jammu and Kashmir at all.

Common Claims About Article 370: What Was Actually True?

Several claims about Article 370 circulated widely in public discussions. Some described genuine differences, while others were misleading or incorrect.

• Separate citizenship: Jammu and Kashmir residents did not have separate Indian and state citizenship. They were Indian citizens.
• Separate flag: Jammu and Kashmir had its own state flag alongside the Indian national flag under its former constitutional arrangements.
• Supreme Court jurisdiction: The Supreme Court of India had jurisdiction over Jammu and Kashmir. It is incorrect to say its orders were not valid there.
• Marriage to a person from another state: Claims that a woman automatically lost her Indian citizenship or all residency rights after marrying someone from another Indian state were inaccurate. The rules governing certain property and residency rights were more complex and changed through legal developments.
• Marriage to a Pakistani citizen: Marriage to a Pakistani citizen did not automatically grant that person Indian citizenship or Jammu and Kashmir residency rights.
• Right to Information: It is incorrect to say that no right-to-information law applied in Jammu and Kashmir. The region had its own RTI legislation before the 2019 changes.
• Right to Education: The claim that the right to education did not apply at all was misleading. The legal framework differed from that in other states, and the central Right to Education Act was extended following the 2019 changes.
• Financial emergency: Article 360’s financial-emergency provisions did not apply to Jammu and Kashmir under the earlier constitutional arrangement.
• Six-year Assembly term: The former Jammu and Kashmir Legislative Assembly had a six-year term, unlike the usual five-year term in other states.
• Panchayats and local government: It is incorrect to claim that panchayats had no authority whatsoever in Jammu and Kashmir. Local government institutions existed under the region’s legal framework.
• Government employees’ salaries: The claim that government peons received only ₹2,500 as a salary because of Article 370 was not an accurate description of the law.

What Happened to Article 370 in August 2019?

On August 5, 2019, the Union government initiated the process of ending Jammu and Kashmir’s special constitutional status. Parliament approved the relevant resolution, and presidential constitutional orders made the Indian Constitution applicable to the region without the previous exceptions.

Parliament also passed the Jammu and Kashmir Reorganisation Act, 2019, which divided the former state into two Union Territories:

1. Jammu and Kashmir, with a legislative assembly.
2. Ladakh, without a legislative assembly.

The reorganisation took effect on October 31, 2019.

The changes affected the region’s constitutional arrangements, the application of central laws and the legal framework governing matters such as education, property and residency.

What Did the Supreme Court Say?

On December 11, 2023, a five-judge Constitution Bench of the Supreme Court unanimously upheld the Union government’s 2019 decision to abrogate Article 370.

The Court held that Jammu and Kashmir did not retain an element of sovereignty after its accession to India and that Article 370 was a temporary provision. It also addressed the constitutional process used to make the change.

The Court directed that legislative assembly elections be held in Jammu and Kashmir by September 30, 2024, and recorded the Union government’s commitment to restore statehood as soon as possible.

Conclusion

Article 370 was a special constitutional provision that shaped the relationship between Jammu and Kashmir and the Union government for decades. It reflected the historical circumstances surrounding the region’s accession to India and established a distinctive arrangement for its governance.

In August 2019, the Union government changed that arrangement, ending Jammu and Kashmir’s special constitutional status and reorganising the former state into two Union Territories.

The issue remains an important part of discussions about India’s constitutional history, federalism and the future of Jammu and Kashmir.

Sources:

• Press Information Bureau — Parliament’s 2019 decision on Article 370.

• Supreme Court of India — December 2023 judgment on Article 370.