Repeal of Article 370

A RESEARCH MADE BY- Ravi Prakash

- B.A. LL.B
- 1756 (Section: A)
FINAL DRAFT SUBMITTED TO –Prof. Dr. Anirudh Prasad,
Professor of Law

A research submitted for the partial fulfillment of the course of Constitution

Law-II, for attaining the degree B.A. LL.B.(Hons.)

Chanakya National Law University, Nyaya Nagar, Mithapur,

Patna, Bihar 800001
 DECLARATION

I hereby declare that the work reported in the B.A LL.B.(Hons.) Project Report entitled
“Repeal of Article 370” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Prof. Dr. Anirudh Prasad,
Professor of Law. I have not submitted this work elsewhere for any other degree or diploma.
I am fully responsible for the contents of my Project Report.

Ravi Prakash
Roll no: 1756
B.A LL.B. (Hons.)
6th Semester
 ACKNOWLEDGEMENT

Primarily, I would like to express my special thanks of gratitude to my Constitutional Law

faculty Prof. Dr. Anirudh Prasad, Professor of Law who gave me the opportunity to do this
project of International Law on the topic “Repeal of Article 370”, who also helped me in
completing my project. I came to know about so many new things after completing this
project.

Then, I would like to thank my friends who have helped me with their valuable suggestions e
that has been helpful in various phases of the completion of the project.

I would also like to extend my gratitude to the library staff members for providing me with
all the facility that was required.

Date: - 19/02/2020 Ravi Prakash

Roll no: 1756

B.A. LL.B. (Hons.)
Contents
DECLARATION..................................................................................2
ACKNOWLEDGEMENT....................................................................3
1. Introduction....................................................................................5
2. Legal History of Article 370.............................................................6
3. Repealing of Article 370................................................................19
4. Implications of Repealing of Art. 370 & 35A.................................23
5. Conclusion.....................................................................................26
BIBLIOGRAPHY....................................................................................27
 1. Introduction

Art. 370 is a special provision for the State of Jammu and Kashmir granting special status to
that state. There should however not be an iota of doubt in anyone’s mind that the said
provision was always meant to be a temporary provision. The same is evident from the fact
that the very title of the said Article begins with the words “Temporary provisions…”. This
is further corroborated by the fact that the said Article finds place within Part XXI of the
Constitution i.e. “Temporary, Transitional and Special Provisions”. The fact that the word
used here is ‘and’, not or, suggests that all the provisions within the said part are meant to be
temporary and transitional besides being special.

Historically speaking, this provision was drafted in 1947 by Sheikh Abdullah, who had been
appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Pandit Jawahar
Lal Nehru. Even at that time Sheikh Abdullah had argued against placing of Article 370
under temporary provisions of the Constitution as he wanted ‘iron clad autonomy’ for the
state, however the Centre stood their ground and didn’t not relent.1

On 6th day of August, 2019 by the Presidential Order with Declaration under Article 370 (3)
of the Constitution of India special status of J&K has been ended. With this amendment state
of J&K became an integral part of India in practical manner. The de-operationalization of
article 370 converted the State of J&K into Union Territory of J&K and Union Territory of
Ladakh in the mainstream. In final draft, researcher will deal with the detailed implications
of Article 370 and also it’s relation with Article 35 of Indian Constitution.

OBJECTIVE: - The aim of the researcher is to present a detailed study of the topic. The
main objective is to know about in what the implications of repealing of Article 370 of
Indian Constitution.
1
[Link]
has-the-president-of-india-done
HYPOTHESIS: - Article 370 is legal as well as a political issue & therefore, it’s abrogation
can lead to various implications.

2. Legal History of Article 370

In case of  State Bank of India v. Santosh Gupta and Anr. Etc.(2016), Supreme Court
clearly held that Jammu and Kashmir is not sovereign and Constitution of Jammu and
Kashmir is subordinate to Constitution of India.2

Before August, 1947 Indian Territories were governed by Britishers. Those territories which
were governed by Britishers directly called British India. In British India there was no role
of Indian kings or Nawabs. Indian territories governed by Britishers indirectly were governed
by kings or Maharaja or Nawabs directly. Such territories were called Princely States. These
were 565 Princely States. British India converted into Dominion of Pakistan and Dominion
of India on 14th and 15th August, 1947 respectively. Dominion of India converted into
Union of India on January 26, 1950.

According to Mountbatten Plan it was declared that British India would be divided into two
parts, namely-
(i) Dominion of India &
(ii) Dominion of Pakistan.

Following the Mountbatten Plan, Independence of India Act, 1947 was passed by British
Parliament. Principle of Lapse of Paramountcy was enshrined in section 7 of Indian
Independence Act, 1947. According to this section, after 15th August all treaty, agreement,
accord with any Indian States shall be lapsed, and it shall be treated that there were no
agreement with any princely states. Three options were given for Indian States. These
options were either to choose India or Pakistan or to be an independent country. Instrument
of Accession becomes a document which contents conditions to join a country. This
Instrument was prepared by Mr. V. P. Menon.3

2
State Bank of India v. Santosh Gupta and Anr, Civil Appeal No. 12237-12238 of 2016
3
Article 370: India strips disputed Kashmir of special status, BBC News, 5 August 2019.
(1) Pre-Constitutional Political and legal history
Hari Singh – Hari singh was born on [Link].1895 at the palace of Amar Mahal Jammu, the
only surviving son of Raja Amar singh Jamwal, the brother of Maharaja Pratap Singh, the
then Maharaja of jammu and Kashmir. In 1903, Hari singh served as page of honor to Lord
Curzon at the grand Delhi Durbar. At the age of 13 he was sent to Mayo College of Ajmer.
[Link] Hari Singh (1895 -1961) was king of Jammu and Kashmir during 1925-1961.
Lord Louis Mountbatten tried to make Hari Singh understand to join either India or Pakistan
in June 1947.

But Mr. Ram Chandra who was the then Prime Minister and advisor of king was not interest
to accept such suggestions and Maharaja Hari Singh decided to keep Kashmir as an
independent nation. Up to August 15, 1947 he neither joined Dominion of Pakistan nor
Dominion of India. In this way Kashmir became a sovereign nation. Although, Maharaja
Hari Singh had signed ‗Instrument of Accession‘ on October 26, 1947 but Instrument of
Accession was accepted on October 27, 1947. It lost its sovereignty on October 27, 1947 on
which date Instrument of Accession of Kashmir was accepted by Mountbatten, Governor
General of India.

Sheikh Mohammed Abdullah – Mr. Sheikh Mohammed Abdullah completed [Link]. from
Aligarh Muslim University in 1930. He started to agitate against king and formed a Party
which was known as All Muslim Conference on October 16, 1932. Sheikh was president of
this Party. He changed his mind and thought to include person of all religions. He realized
that the actual fight was not against Hindu king. Actual fight was against dictator king. So
All Muslim Conference converted into National Conference on June 11, 1939.

He started a movement for abolition of kingship in 1946. He was arrested. He was released
on September 19, 1947. He and his supporters played vital role in support of Indian Army at
the time of attack over Kashmir by Pakistan. He was very popular leader. He accepted
concept of secularism and socialism. So Mr. Jinnah and Muslim League were unable to play
any role in Kashmir. He played vital role as a leader in politics of Jammu and Kashmir.

War between Pakistan and Kashmir (October 22, 1947 - October 26, 1947)4
4
Article 370: Rewriting both the history and geography of J&K". The Times of India.
On October 16, 1947, Pakistan broke Standstill Agreement with Kashmir and stopped supply
of grains, oil etc. and train services. Mr. Md. Jinnah wanted to use force for acquiring land of
Kashmir. Pakistan with help of tribal militias attacked over Kashmir on October 22, 1947. At
this time Kashmir was sovereign. Kashmiri Muslim Army who was serving king joined
hands of Pakistani invaders. Brigadier Rajendra Singh stopped them from entering into Uri
by blasting bridge and stopped them for two days. He sacrificed his life but played a vital
role to save Kashmir. After two days (October 24, 1947) Pakistani invaders entered into Uri
and captured Hidro -Power Station.

They cut electricity of Kashmir. They had reached in Baramulla which was 54 kilometers
from Srinagar. But invaders started to murder, rape, loot etc. of all persons irrespective of
religion, race, caste sex etc. in two days. King Hari Singh got time to rethink his decision.
Hari Singh requested from Dominion of India to save Kashmir on October 24, 1947. On 25
October, Memon met new Prime Minister Mehar Chand Mahajan and King. He suggested
king to go Jammu after leaving Kashmir.

Following the suggestions Hari Singh ran to Jammu. Memon, Prime Minister Mehar Chand
Mahajan and some army officers leaved Kashmir in night. On October 26, 1947, Pakistani
invaders attacked over Kashmir. Lord Louis Mountbatten was not ready to save Kashmir
unless King decides to join Dominion of India because at that time Kashmir was an
Independent country. In this meeting Mr. Memon explained ground report of Kashmir. After
Meeting of Defence Committee, Memon, Prime Minister Mehar Chand Mahajan went to
Jammu and met Hari Singh. Hari Singh signed on ‗Instrument of Accession‘ on the same
date i. e. on October 26, 1947.

Sign on Instrument of Accession by Maharaja Hari Singh on October 26, 1947

October 26 is historical date in the history of Kashmir. On this date Maharaja Hari Singh
signed Instrument of Accession‘ and decided to join Dominion of India. Mountbatten,
Governor General of India accepted this ‗Instrument of Accession‘ on October 27, 1947.
After sign on Instrument of Accession‘ by Mountbatten, Jammu &Kashmir became part of
Dominion of India and lost its sovereignty. Now it was obligation of India to save the
Kashmir. Again meeting of Defence Committee was held and it was decided to send the
army in early morning to save the Kashmir. In this meeting Mountbatten proposed for
plebiscite in Kashmir after reinitiation of peace and security. Mr. Patel and Mr. Nehru gave
implied consent. This Instrument of Accession was in no way different from executed by
some 500 other states. It was unconditional voluntarily and absolute. It bound the Jammu &
Kashmir legally and constitutionally.

First war between India and Pakistan (27 October, 1947- January 1, 1949)
October 27, 1947, Instrument of Accession was signed by Mountbatten and Kashmir became
part of India. Attack over Kashmir after sign of Instrument of Accession was attack over
India. Early morning of 27 October, 1947 Lt. Col. Deewan Ranjit Roy reached Kashmir with
Air Force. After this Indian forces heavily attacked over Pakistani invaders. They started to
run away. Bharat Mata Ki Jai(Victory of Mother India) slogan were chanted by everyone and
everywhere. War was continuing. Mr. Jinnah invited India for discussion in Lahore. Mr.
Mountbatten and Mr. Nehru were ready but Mr. Patel was opposing. Only Mountbatten
reached Lahore. Mr. Nehru did not go due to his health reasons. On November 1, 1947,
Mountbatten met with Jinnah in Lahore. Jinnah was saying that accession was a cheating.
Mountbatten supported India. It is the first official meeting with India and Pakistan.
Everything was going in favour of India. But unfortunate things happened on November 2,
1947.5

Announcement of Plebiscite in Kashmir by Mr. Nehru on November 2, 1947

Mr. Nehru did not know ground reality of Kashmir after Pakistani attack. He had
misconception about United Nations Organisation because he did not know practical
behaviors of permanent members of Security Council. Mr. Nehru had no bargaining power
with permanent members of Security Council. On November 2, 1947, without waiting result
of Meeting of Mountbatten and Jinnah, Nehru announced on All India Radio in Delhi for
plebiscite in Kashmir and role of United Nations on Kashmir issues under supervision of
International Bodies like United Nations Organization. First time plebiscite was suggested by
Mountbatten in Meeting of Defence Committee on 26 Oct. 1947.

But in the meeting condition was that plebiscite would be conducted after restoration of
peace and security. Nehru openly declared for plebiscite on November 2. Jinnah was not
ready for plebiscite at that time. He feared that Kashmir may join India under leadership of
Sheikh. Even USA and UK knew that in case of plebiscite Kashmir would join India. So
USA and UK supported Pakistan for their interests. Mr. Nehru committed wrong by sending
5
Article 370: India strips disputed Kashmir of special status, BBC News, 5 August 2019.
plebiscite issues in UNO. At that time plebiscite should have been conducted without
interference of UNO. Nehru realized this later on. After this Kashmir issues became
international issues. Later on by interference of Security Council cease fire occurred and
Pakistan have half part of Kashmir till now.

Plebiscite was completed in Jammu & Kashmir in 1957. Members of Constituent Assembly
were representing the Public of Jammu & Kashmir. They were elected by public by casting
votes. They expressed their views through Constitution of J&K which came into force on
January 26, 1957. Article 3 of the Constitution of J&K clearly says that “The State of Jammu
and Kashmir is and shall be an integral part of the Union of India”. Article 147 says no
change can be done in Article 3 of the Constitution.

(1) Creation of POK/LOC on January 1, 19496

After announcement of Mr. Nehru on November 2, 1947 Kashmir‘s issue was referred to
UNO. India raised this issue in Security Council by using Article 35 of the Charter of the
United Nations Organization and complained against [Link] Nations offered for
cease fire on August 13, 1948. Indian Army was continuously acquiring land of Kashmir
from Pakistan. Jinnah lost his mental control. It was the first defeat of Pakistan.

Due to intervention of UNO, on 1st January 1949, cease fire between India and Pakistan was
declared. At the time of cease fire Indian Army had thrown Pakistani Army from Kargil and
Dras but remaining part was in the hand of Pakistan Army. Land held by Pakistan is called
Pakistan occupied Kashmir (POK). Cease fire line on January 1, 1949 is called Line of
Control.

(2) Post-Constitutional political & legal history7

On 25 January, 1950, Yuvraj Karan Singh authorized by Maharaja announced that
Constitution of India must be adopted by Constituent Assembly of the States only those
provisions which were related to Jammu and Kashmir. Remaining part of Constitution of
India came into force on January 26, 1950. Constitution (Application to Jammu and
6
 "Article 370: 10 facts that you need to know   : Highlights, News – India Today". [Link].
Retrieved 18 August 2014.
7
The importance of Article 370, The Hindu, 15 October 2015.
PTI.  "Article 370 is permanent, rules J&K High Court". The Hindu. Retrieved  25 March 2017.
Kashmir) Order 1950 was issued by President by using power conferred by Article 370(1) on
January 26, 1950.

Constitution of Jammu and Kashmir8

The terms of the proclamation of the Maharaja on March 5, 1948 in regard to the convening
of a National Assembly did not meet the requirements of the situations prevailing at that
time. Yuvraj Karan Singh issued proclamation for new Constituent Assembly.

On April 20, 1951 Yuvraj Karan Singh s/o Maharaja Hari Singh issued a Proclamation for
constituting a Constituent Assembly for purposes of framing a Constitution for the State. The
Constituent Assembly consisted of seventy-five members. National Conference won all the
75 seats in direct election on the basis of adult franchise under leadership of Sheikh
Abdullah.

The first meeting of the J&K Constituent Assembly was held at Srinagar on October 31,
1951. According to preamble of Constitution of J&K, Constitution of the State was adopted
and enacted on November 17, 1956.

The last session of the Constituent Assembly was held on January 25, 1957. Constitution of
Jammu & Kashmir came into force of January 26, 1957. January 26 is also celebrated as
republic day of India. January 26 was chosen for enforcement of Constitution of J&K to
show unity with India. Total sections are 158 and seventh schedules and Appendix.

First Schedule has been omitted Shri N. Gopalaswami Ayyangar presented clause 306A
(Now it is known as Article 370) in Constituent Assembly on October 17, 1949.16 It was
introduced due to absence of peace and security in J&K. It was accepted in form of interim
system. Shri N. Gopalaswami Ayyangar elaborated each provision in detail. Clause 306A
became Article 370 after the Commencement of the Constitution of India. Article 370 came
into force on January 26,1950.(please refer article 370).

Meaning of Government of the State.9

Meaning of Government of the State is very important. Parliament can make laws only with

8
"Article 370: Rewriting both the history and geography of J&K". The Times of India
9
Das Gupta, Jammu and Kashmir (1968), p. 198–200, 212.
consultation or concurrence of the Government of the State. In the Constituent Assembly
from the very beginning Explanation was added to define Government of the State.‘
Explanation added in clause 306A (now article 370) is For the purposes of this article, the
Government of the State means the person for the time being recognised by the Union as the
Maharaja of Jammu and Kashmir, acting on the advice of the council of Ministers, for the
time being in office, under the Maharaja's Proclamation, dated the fifth day of March, 1948.”
This explanation was accepted in article 370 of the Constitution of India with minor
modification....recognised by Union was replaced by recognised by President  in Article 370.

President has power to make Order under article 370 (1). Amendment by Parliament is not
necessary. In 1952, the Constituent Assembly of J&K , on the recommendations of the Basic
Principles Committee, abolished the hereditary rulership and substituted in its place an
elected head, designed Sadar-i-Riyasat.23 It became necessary to change the definition of the
Government of State and Explanation was modified. In 1952 modification was done in
Explanation by order of President of India on the recommendation of Constituent Assembly
(First meeting on October 31, 1951- Last meeting on January 25, 1957) of J&K. Order was
effective from November 17, 1952.

Substituted explanation is following-

Explanation For the purposes of this article, the Government of the State means the person
for the time being recognised by the President on the recommendation of the Legislative
Assembly of the State as the Sadar-i-Rayasat of Jammu and Kashmir, acting on the advice of
the Council of Ministers of the State for the time being in Office.”10

In 1965 post of Sadar-i-Rayasat and Prime Minister was substituted by Governor and Chief
Minister respectively. This was done by the Constitution of Jammu and Kashmir (Sixth
Amendment) Act, 1965. Post of Sadar-i- Rayasat was substituted by Governor from
Constitution of Jammu and Kashmir but consequential amendment was not done in Article
370. Jammu and Kashmir Preventive Detention (Amendment) Act, 1967 was assented by
Governor. It was challenged that Governor had not been mentioned in Article 370. So this
Amendment was unconstitutional. Constitutional Bench of Supreme Court in the case

10
"Central Enactments Applicable To State of Jammu And Kashmir in Alphabetical Order" (PDF). 10 February
2009. Retrieved 23 November 2014.
of Mohd. Maqbool Damnoo v. State of Jammu and Kashmir11 held that no difficulty in
holding that article 370 (1) and article 370 (1) (d) place no limitation on the framing or
amendment of the Constitution of Jammu and Kashmir. If there is a limitation it must be
found in the Constitution of the State Section 147 of the Constitution of Jammu and Kashmir
itself provides that under that section the Indian Constitution cannot be amended. In this case
the Court held that the Amending Act was validly assented to by the Governor.

According to section 35 of the Constitution of Jammu and Kashmir all functions of the
Governor except those functions mentioned in sections 36, 38 and 92 shall be exercised by
him only on the advice of the Council of Ministers with Chief Minister at the head.

Final conclusion is that in present time Government of the State means Governor who acts
only on the advice of the Council of Ministers with Chief Minister at the head. Jammu and
Kashmir has adopted Parliamentary form of Government.26 So final powers are in the hand
of Legislative Assembly of Jammu and Kashmir. (Application of other provision of the
Constitution subject to exceptions or modifications with consultation or concurrence as the
case may be-Article 370(1) (d)

Meaning of Modification- modification has been interpreted in widest amplitude. Article 367
lays down that, unless the context otherwise requires, the General Clauses Act, 1897, shall
apply for the interpretation of the Constitution. Therefore section 21 of the General Clauses
Act, under which a power to issue a notification or order includes a power to add, amend,
vary or rescind it, is applicable to the power of the President under Art. 370.

Puran Lakhanpal v. President of India and Others (1961) - Power of President to make

an Order to modify the Constitution was challenged in Puran Lakhanpal v. President of
India and Others (1961). By the Constitution (Application to Jammu and Kashmir) Order,
1954 method of election for six seats in Lok Sabha from J&K was changed from direct
election to indirect election. This Order had been issued by President with the concurrence of
the Government of J&K under Article 370 (1). Constitutional Bench of Supreme Court held
that President has such power because essence of election still persists.12

11
1972 AIR 963, 1972 SCR (2)1014
12
Puranlal Lakhanpal vs The President Of India And Others, 1961 AIR 1519, 1962 SCR (1) 688
Supreme Court held, -The word modification used in article 370(1) (d) must be given the
widest meaning in the context of the Constitution and in that sense it includes an amendment
and it cannot be limited to such modifications as do not make any -radical transformation.
(1) Word modification as used in article 370 was interpreted with the help of article 367 read
with section 21 of General Clauses Act, 1897.31 Wider interpretation was done.

(2) By Constitution (Application to Jammu and Kashmir) Order, 1954 a proviso was added
after clause (2) of Article 368. This proviso is - Provided further that no such amendment
shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the
President under clause (1) of article 370.‖

(3) Any amendment made under article 368 cannot be applied to J&K without Order of
President made after concurrence of Government of J&K under article 370. Article 368 does
not automatically applicable to J&K.

(4) Article 370 authorizes the President to modify a Constitutional provision not only when it
is applied to the State for the first time, but even subsequently after it has been applied.

(5) Meaning of modification was accepted as was laid down in Puran Lakhanpal Case, 1961

(6) In this case Supreme Court clearly said, “It is thus clear that the State of Jammu &
Kashmir has no vestige of sovereignty outside the Constitution of India and its own
Constitution, which is subordinate to the Constitution of India. It is therefore wholly
incorrect to describe it as being sovereign in the sense of its residents constituting a separate
and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the
High Court, are first and foremost citizens of India. Indeed, this is recognized by Section 6 of
the Jammu & Kashmir Constitution.”

Constitution (Application to Jammu and Kashmir) Order 1950-

President, by using the power conferred by clause (1) of article 370, in consultation with
Government of J&K has made the Constitution (Application to Jammu and Kashmir) Order
[Link] Order was made on January 26, 1950 and it came on the same date. In this Order
some items mentioned in Union List were declared as corresponding matters of Instrument of
Accession. Some other provisions were also declared on which Parliament can make laws.13

Delhi Agreement, 1952

An agreement between Pt. Jawahar Lal Nehru and Sheikh Abdullah was concluded in July
24, 1952 which is known as ‗Delhi Agreement‘. By this Agreement some consciousness
were made between both leaders. These are (1) Internal autonomy was accepted (2) State
Legislature was authorized to make laws on state subjects who had gone to Pakistan due to
communal violence of 1947 if they return Kashmir (3) Pardoning powers were given to
President (4) State flag along national flag was allowed. (5) Sadar-i-Riyasat must be elected
by the State Legislature.

Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1952

The President by using the powers conferred by clause (1) of Article 370 of the Constitution
of India, in consultation with the Government of the State of Jammu and Kashmir made the
Order Constitution (Application to Jammu and Kashmir)Second Amendment Order, 1952. It
come into force on November 17, 1952. By this Order Rajpramukh was replaced by Sadar-i-
Riyasat of Jammu and Kashmir. Sadar-i-Riyasat was elected person.

Removal of Sheikh Abdullah as Prime Minister and Bakshi Ghulam Mohammad new PM-
Due to pressure of Mr. Nehru, Mr. Karan Singh was elected as first Sadar-i-Riyasat. Delhi
Agreement, 1952 was very dangerous for whole country. Agitation started against this. Dr.
Syama Prasad Mukharji, N.N. Khare and Sucheta Kriplani vehemently criticized the Delhi
Agreement.

Sheikh Abdullah, instead of implementing the Agreement started advocating secession,

which would make a Kashmir an ‗independent state‘.It was inflammatory rumours that USA
was backing for independence of Kashmir. Rift occurred in cabinet.

Sheikh Abdullah who was holding the post of Prime Minister since March 5, 1948 was
dismissed by Sadar-i-Riyasat Mr. Karan Sing on August 8, 1953 on the ground that he had
lost his majority in the House. He was not given chance to prove majority. On August 9,
1953, Sheiks was sent to jail in ‗Kashmir Conspiracy case‘. Bakshi Ghulam Mohammad

13
Article 370, granting special status to the state, is permanent: Jammu and Kashmir High Court, The Economic
Times, 11 October 2015.
who was very popular leader in Kashmir and he was opposing policy of Sheikh was
appointed as Prime Minister of Jammu and Kashmir on August 9, 1953.

(2) Constitution (Application to Jammu and Kashmir) Order 1954

New Delhi negotiated with Jammu and Kashmir in January, 1954. At that time President of
India and Prime Minister of India were Mr. Rajendra Prasad and Mr. Jawaharlal Nehru
respectively and Sadar-i-Riyasat and Prime Minister of Jammu and Kashmir were Mr. Karan
Singh and Mr. Bakshi Ghulam Mohammed respectively. After long discussion negotiation
was concluded. Constituent Assembly of J&K ratified the State‘s Accession to India in
February [Link] exercise of the powers conferred by clause (1) of article 370 of the
Constitution, the President, Mr. Rajendra Prasad with the concurrence of the Government of
the State of Jammu and Kashmir, on the advice of the Government of Pt. Jawaharlal Nehru
made an Order which came into force on May 14, 1954. This Order is known as Constitution
(Application to Jammu and Kashmir) Order 1954.

By this Order several new provisions were accepted in the Constitution of India and
consequently several provisions of Indian Constitution were extended to Jammu and
Kashmir. After October 26, 1947 acceptance of Order was most beneficial. Benefit of this
Order must be evaluated according to circumstances prevailing during 1947 to 1954. It was
applauded by everyone. By this Order law making powers of Parliament were extended on
several other subject matters. If you compare this Order in comparison to other State you
may feel nervous. But main problem aroused due to delay of acceptance of Instrument of
Acceptance and by sending this issues in UNO. One of the Controversial Article i.e. Article
35A came from this Order.

Article 35A- Saving of laws with respect to permanent residents and their rights
Article 35A contents Non-obstante Clause. It declared that neither previous nor subsequent
laws enacted by Legislature of J&K shall be void on the ground of violation of any
provisions of the Constitution of India if it is related to following matters-
(1) Definition of permanent residents,
(2) conferring on special rights and privileges or imposing upon other persons any
restrictions as respects-
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) Right to scholarships and such other forms of aid as the State Government may provide.

Such legislation shall be valid notwithstanding that it is inconsistent with the fundamental
rights conferred by the Constitution upon the other citizens of India, such as discrimination
on the
ground of place of birth (article 15(1), equality of opportunity for employment(article 16(1),
and right to reside and settle in any part of the territory of India (article 19(1)( e) , etc.40

Section 6, Permanent residents

Section 6 of the Constitution of Jammu and Kashmir defines ‗Permanent residents‘. There
are three clauses of this section. First clause related to Citizen of India, second clause is
related to any person who migrated to Pakistan after March 1, 1947 and returns to J&K. and
in third clause ―State Subject of Class I or of Class II‖ shall have been defined.

According to section 10 of the State Constitution the permanent residents of the State shall
have all the rights guaranteed to them under the Constitution of India.

Parkash v. Mst Shahni and others14

In 1965 Jammu and Kashmir High Court decided a case which involved issue of permanent
residence. According to decision of this case in case of marriage of girl who is permanent
resident with a boy who is non-permanent resident , such girl will lose the status of
permanent resident of J&K. because her domicile and nationality changed according to her
husband. This decision was supporting patriarchal society. This decision was overruled in
2002.

What is the Status of Article 35A now-

Article 35A stem from art.370, and was introduced through a presidential order in 1945.
Art.35A does not appear in the main body of the constitution Art.35 is followed by Art36 but
appears in appendix –l. Art.35A empowers the Jammu and Kashmir legislature to define the
permanent residents of the state, and their special rights and privileges. Monday's
([Link].2019) Presidential order has extended all provisions of the constitution to Jammu
14
Prakash v. Mst. Shahni, A.I.R. 1965 J. and K. 83
and Kashmir , including the chapter on Fundamental Rights. Therefore, the discriminatory
provisions under 35A are now unconstitutional. The President may also withdrawal [Link]
provision is currently under challenge in the Supreme Court of India on the ground that it
could have been introduced in the Indian constitutionally through a constitutional amendment
under Art368, and not through a presidential order under 370. However, Monday’s
presidential order, too has amended article 367 without following the amending process…

Note lll-
The wife or a widow of the State Subject of any Class shall acquire the status of her
husband as State Subject of the same Class as her Husband, so long as she resides in the
State and does not leave the State for permanent residence outside the State.

Note III is applicable to only those wife or widow who is non- permanent resident of J&K
and marries a permanent resident of the state. But after getting marriage they have acquired
status of her husband and became the permanent resident of Jammu and Kashmir. If they
leave J&K for permanent residence outside the State they will lose their status. This note is
not applicable those women who have become permanent resident by birth. So if such
women get marriage with non-permanent resident of J&K will not lose status of ‗permanent
resident.

Decision: J&K High Court held that a daughter of a permanent resident marrying a non -
permanent resident will not lose the status of permanent resident of the state of Jammu and
Kashmir.

Decision of this case was challenged in Supreme Court by State Government. But it was
withdrawn due to fear of approval of decision of Supreme Court. It was decided to change
this decision through enactment of laws by State Legislation. Permanent Residents
(Disqualification) Bill, 2004 was introduced in the Assembly to change the decision of J&K
High Court in [Link] issues have been challenged in Supreme Court by ‗Public Interest
Litigations.
 3. Repealing of Article 370

Article 370 was introduced for a time being. It is temporary provisions in the Indian
Constitution.
Article 370 (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.

According to Article 370 (3), President has been authorized to cease the operation of Article
370 in whole or with modification by public notification. But this power of President is
conditional rather than absolute. This power is subject to the recommendation of the
Constituent Assembly. Constituent Assembly was in existence during 1951 -1957 (First
meeting on October 31, 1951-Last meeting on January 25, 1957). At present time this
Constituent Assembly does not exist. So Article 370(3) is not operative.

In these circumstances recourse have to be taken of Article 368. But it must be remembered
that Article 368 does not apply automatically unless President make an order after
consultation with or concurrence of the State Government.45 Article 368 does not curtail the
power of the President under Article 370.46 So final power is in the hand of Government the
Government of State of Jammu and Kashmir.

Relation between Constitution of India and Constitution of Jammu & Kashmir

Article 370 deals temporary provisions with respect to Jammu and Kashmir. According to
section 3 of the Constitution of Jammu & Kashmir, 1957 ‗the State of Jammu and Kashmir
is and shall be an integral part of the Union of India‘. Section 3 is the basic feature of
Constitution of Jammu & Kashmir. According to section 147 of the Constitution of Jammu &
Kashmir any Bill or Amendment shall not be moved in either House to change section 3 or
the provisions of the Constitution of India as applicable, in relation to the State..

The Constitution (Application To Jammu And Kashmir) Order, 201915

15
"Jammu is not for burning". [Link]. Retrieved 8 November 2019.
Union Minister for Home Affairs, Shri Shah, introduced two bills and two resolutions
regarding Jammu & Kashmir (J&K) today.

These are as follows:

1. Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of
Constitution of India} – issued by President of India to supersede the 1954 order related to
Article 370.
2. Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}
3. Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}
4. Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019

Government is moving a resolution which would repeal the provisions under Article 370 of
the Constitution of India, which granted a special status to the state of J&K. The provisions
of Article 370 would cease to exist from the date President of India issues a notification in
this regard, after the recommendation of the Parliament. Consequently, the Constitution of
India would get applicable to J&K, on par with other states/UTs of the country, the Minister
added.

Article 370 has prevented J&K to merge with India rather than being a basis of its merger.
The politics of vote bank has looted the youth of the state for over 70 years. I would call on
the opposition members to debate and discuss on why the benefits of development were not
allowed to reach the common people of J&K till now. Politics of religion must be avoided at
all costs. Article 370 is equally harmful for people of all religions”, the Minister said.

Further, the Minister termed the provisions of Article 370 as discriminatory on the basis of
gender, class, caste and place of origin. The youth is being taken for a ride by the political
elite. This provision was temporary in the first place and it has to go in the larger interest of
the people of J&K, he added.

Under article 370(3), there is a provision that President, on recommendation of the

Parliament, has the power to amend or cease the implementation of article 370, through a
public notification. This has already happened on a number of occasions in the past. The
Home Minister pointed out to the opposition that everyone knows how the article 370 is
hampering the development of the people of the state.

the repeal of the Article 370, doors to private investment in J&K would be opened, which
would in turn increase the potential for development there. Increased investments would lead
to increased job creation and further betterment of socio-economic infrastructure in the state.
Opening of buying of lands would bring in investments from private individuals and
multinational companies and give a boost to the local economy, as opposed to the
apprehensions raised by those opposing this historic step, he added.

Home Minister remembered the martyrdom of civilians and soldiers who have lost their lives
during 1989-2018. He said that had article 370 would not been there, these people wouldn't
have lost their lives. Refugees who came from Pakistan after partition did not get citizenship
till now. They cannot become councillors in the state. This has been a historical injustice to
these people. As opposed to this, in rest of India two Prime Ministers were elected from
those refugees. Because of article 370, democracy never took root in J&K, corruption
flourished, widespread poverty took root and no socio-economic infrastructure could come
up. It is the root cause of terrorism. Further, 73rdand 74thAmendments to the Constitution
could not be applied to J&K due to article 370. Panchayat and Nagar Palika elections could
not be held. Who is responsible for taking away democratic rights of the people of J&K
which were available to other citizens of India? It was Article [Link] elections
recently held were conducted successfully and peacefully. The people want democracy and
not bloodshed., the Minister said.

Talking about economic backwardness in J&K, article 370 impedes people from outside the
state to do business there. Absence of economic competition has prevented development and
corruption [Link] prices are at a rock bottom because no one can buy land there. No
industry, including tourism, is allowed to flourish there. People remain poor in perpetuity
despite presence of abundant economic opportunities for the local populace. Rampant
corruption is present, thus preventing external investment in the state.

Rebutting the apprehension that removing article 370 would destroy Kashmiri culture, Shri
Shah said that all states have preserved their culture and language after becoming a part of
the Union of India. How does article 370 protect JK on this aspect, he asked. It is only and
only a political propaganda that has blinded the youth of Kashmir into believing it for 70
years.“I assure the youth of JK that give this government 5 year and it will become the most
progressive region in the country”, the Minister said.

Daughters of the state marrying outside the state lose their rights to property. It is so
discriminatory to the women and their children. SC and ST people have been discriminated
against and have been deprived of reservation to political offices. Despite knowing this a few
people have been perpetuating this article only for their political gains, the Minister said.

Shri Shah assured the House that if the Union Territory model works well, our government
would also consider giving J&K the status of state again. No constitutional amendment
would be required.

J&K would become a true part of India in letter and spirit once article 370 is removed. The
path to solution to all the problems of Kashmir goes through the repealing of article 370. This
step would stand strong and would pass the test of legal scrutiny.

Article 370 was a temporary and transient provision, it had to go. It only required political
will, which only the present government had. I give a heartfelt appeal to all political
parties to rise above political considerations to join hand with the government to
remove article 370. The country wants this united as one, the Minister concluded, after
which all the resolutions and bills relating to J&K were passed.

Shri Amit Shah also introduced the Jammu and Kashmir (Reorganisation) Bill, 2019 making
Jammu & Kashmir a Union territory with a Legislative Assembly,along with Union Territory
status to Ladakh without a Legislative Assembly.

Further, the Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019 to amend the
Jammu & Kashmir Reservation Act 2004 was also introduced. This bill seeks to extend the
10% quota to economically weaker sections of society in J&K in jobs and educational
institutions. Both the bills were passed by Rajya Sabha unanimously.
 4. Implications of Repealing of Art. 370 & 35A

According to Art. 370, except for defence, foreign affairs, finance and communications,
Parliament needs the state government’s concurrence for applying all other laws. Thus as of
today, the state’s residents live under a separate set of laws, including those related to
citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Therefore logic dictates that a direct effect of the repeal of the said Article would entail that
the complete set of laws as applicable elsewhere in India shall immediately come into effect
in the state of Jammu and Kashmir as well.

As an indirect result of Art. 370 (and a direct result of Art. 35A), Indian citizens from other
states cannot purchase land or property in Jammu & Kashmir. The Centre presently has no
power to declare financial emergency under Article 360 in the state. Thus, an emergency can
declare in the state only in case of war or external aggression. The Union government can
therefore not declare emergency on grounds of internal disturbance or imminent danger
unless it is made at the request or with the concurrence of the state government. This
impediment would also be removed by the repeal of Art. 370 thereby giving the Centre a
better handle to control the deteriorating situation especially with regard to the continued rise
of Islamic terrorism and insurgency from PoK into the valley. It might even remove the need
for Armed Forces Special Powers Act in the State, in the long run.

Article 370 also suggests that the name and boundaries of the State cannot be altered without
the consent of its legislature. The need for such a change of name and boundaries of the State
is undoubtedly debateable but that debate must take place only in the central legislature of
the union and not the state legislature whose members might harbour separatist sentiments, if
at all.

While Article 370 itself is gender neutral, the definition of Permanent Residents in the State
Constitution — based on the notifications issued in April 1927 and June 1932 during the
Maharajah’s rule — are thought to be discriminatory. The 1927 notification included an
explanatory note which stated: “The wife or a widow of the State Subject … shall acquire the
status of her husband as State Subject of the same class as her Husband, so long as she
resides in the State and does not leave the State for permanent residence outside the State.”
This was widely interpreted to mean that a woman from the State who marries outside the
State would automatically lose her status as a State subject. However, in October 2002, the
full bench of J&K High Court, with one judge dissenting, held that the daughter of a
permanent resident of the State would not lose her permanent resident status merely upon
marrying a non-permanent resident, but would continue to enjoy all rights, including those
pertaining to inheritance of property. However, this judgment may be subject to modification
as the matter is sub-judice pending appeal in the Supreme Court.

Implication of absence/repeal of Art.35A16

It is often claimed by the proponents in favour of Art. 35A that it is bridge, which connects
the state of Jammu and Kashmir and the rest of India, and not a wall. Let’s put this statement
to the test. If indeed it is a bridge as claimed then surely the absence of such a bridge would
mean the greater alienation of state of Jammu and Kashmir. Let’s for a moment suppose that
such a bridge did not exist. What would have been the state of relations between the state of
Jammu and Kashmir and the Union of India?

Without Art. 35A, there would be no different class of citizens one being permanent
residents and the other not being permanent residents. In the absence of this provision, all the
citizens residing in the state shall be treated as equal in the eyes of the state. There shall be no
discrimination by the State Government in employment and everyone shall be eligible to
receive scholarship or other forms of aid whenever they are able to satisfy the other criterions
for the same. There being no impediment to the settlement and acquisition of immoveable
property within the State of Jammu and Kashmir, other citizens of India shall be able to
freely relocate to the State ensuring cross-transmission of culture and greater integration of
the state and its people with the Union of India and its other citizens.

All this philosophical evidence as well as the geographical evidence that we are well aware
of clearly indicates that obviously, Kashmir is not an island that may be surrounded by water
on all sides and therefore must be connected with a bridge but rather is a valley separated
from the mainland by a mountain like barrier that must be removed. Much in the same way

16
"Article 370 and 35(A) revoked: How it would change the face of Kashmir". The Economic Times. 5 August
2019.
that the Pir Panjal/Banihal Tunnels have physically connected the nation to the state, Art.
35A must be removed to emotionally and psychologically connect the state to the nation.

The Hon’ble Supreme Court has infact taken a step in that direction in its recent observations
in the case of State Bank of India v. Santosh Gupta and Anr. (2017) 2 SCC 538 where it has
categorically ruled as incorrect any description of Jammu and Kashmir as “being sovereign
in the sense of its residents constituting a separate and distinct class in themselves.” In this
regards the Hon’ble Supreme Court quite rightly chose to remind the Hon’ble High Court
that the permanent residents of Jammu & Kashmir are first and foremost citizens of India and
that unlike some other federal Constitutions, the Indian Constitution does not contemplate
dual citizenship.

While overturning the Hon’ble High Court’s judgment, the apex court opined that “the High
Court judgment begins from the wrong end and therefore reaches the wrong conclusion” in
that it states that “the State has absolute sovereign power to legislate in respect of laws
touching the rights of its permanent residents qua their immovable properties,” in terms of
Section 5 of the Constitution of Jammu & Kashmir.
 5. Conclusion

The media outlets have not mentioned and therefore most people are not aware that Article
370 was incorporated in the Indian Constitution as a “temporary measure.” The provisions of
Article 370 were not a part of the “Instrument of Accession Agreement” signed in 1947 by
the Maharaja of Jammu and Kashmir as well as by rulers of more than 500 other princely
states. Article 370 was strictly a temporary article in the Indian Constitution and its
elimination under procedures specified by the Indian Constitution should not therefore be an
issue of concern to any foreign state or its leaders.

Similarly, Article 35A defining the residents of Jammu and Kashmir and their rights was
incorporated in the Indian Constitution in 1954 under the provisions of Article 370 by a
presidential decree, four years after the Indian Constitution came into force in 1950. It is
therefore clear that these were temporary articles incorporated by Indian legislators in the
Indian Constitution and their removal by Indian parliamentarians should not be of concern to
foreign powers let alone prompt any threats of nuclear war by Pakistan.

The state of Jammu and Kashmir became a part of India as a result of the signing of
“Instruments of Accession” developed by the British under the Indian Independence Act of
1945 passed by the British Parliament. It became a bilateral issue only because of invasion of
the state by Pakistan in 1947 and it has refused even now to withdraw from that territory.

The Indian government has come under lot of criticism in the foreign media and among some
ill-informed politicians because of what it did after the abrogation of Articles 370 and 35A.
These steps may have been seen as harsh to outside observers. However, the Indian
government knew that there will be violent protests in the state after its action. The history of
protests in the state during last 30 years has shown that all protests very quickly become
violent and controlling them lead to a tremendous loss of life.
Aware of this ever-present danger, the government decided that the situation should be
handled with great care so that there is no loss of life. Based on this historical experience, the
government decided to impose restrictions on communications and movement of the people
so that there are no immediate violent protests. The government has been gradually relaxing
those restrictions. The result of the imposition of restrictions and their gradual relaxation has
been that life is slowly returning to normal. Not a single bullet has been fired and there has
been no loss of life during this period. This is an extraordinary accomplishment.

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