Article 370

Also called: Special status of Jammu and Kashmir · Topic: Special Provisions, Scheduled and Tribal Areas · NCERT: Class 11, Ch 7 "Federalism"; Class 11, Ch 10 "The Philosophy of the Constitution"; Class 12, Ch 7 "Regional Aspirations"

Meaning

Article 370 was a temporary provision in Part XXI of the Constitution that gave Jammu and Kashmir (J&K) special status. Under it, Parliament could make laws for J&K only on a limited set of subjects. Other parts of the Indian Constitution reached the state only through presidential orders.

It matters because it was India's clearest case of asymmetric federalism, where one state got a different deal from the others. It stopped applying in August 2019, and the Supreme Court upheld this in December 2023 [2]. At the same time, the state was split into two Union Territories [3].

Explanation

Where it came from: accession and Part XXI

• Instrument of Accession (the legal document by which a princely state joined India): Maharaja Hari Singh signed it on 26 October 1947.
• Under it, J&K handed only three subjects to India:
• defence
• external affairs

• communications

• After he signed, J&K had no internal sovereignty (no final power of its own inside the state) different from other states. This was the Supreme Court's finding in 2023 [2].

• Art. 370 sat in Part XXI, first titled "Temporary and Transitional Provisions".

• The 13th Amendment, 1962 changed the title to "Temporary, Transitional and Special Provisions".

• Art. 370 was a temporary provision. It was meant as an interim arrangement, not a permanent one.

How it worked: the four clauses (text before 2019)

• Art. 370(1)(b): Parliament's law-making power
• For Union List and Concurrent List subjects that matched the Instrument of Accession, Parliament only had to consult the state government.
• For all other subjects, it needed the state government's concurrence.

• Together, these kept Parliament's power in J&K small.

• Consultation vs concurrence

• Consultation: the Union must ask for the state's view, but it does not have to follow it.

• Concurrence: the Union needs the state's actual agreement.

• Art. 370(1)(d): presidential orders

• Other parts of the Constitution applied to J&K only through presidential orders.

• The President could add "exceptions and modifications" (changes) to each part applied.

• Art. 370(2): the Constituent Assembly's final say

• The state government sometimes agreed to something before the J&K Constituent Assembly (the body that wrote the state's constitution) met.

• Any such agreement had to go to that Assembly for its decision.

• Art. 370(3): the "exit door"

• The President could declare, by public notification, that Art. 370 would stop working.
• The President could do this only on the recommendation of the J&K Constituent Assembly.

Presidential orders and Article 35A

• How the Constitution was extended, step by step
• C.O. 10 (1950) applied the Union and Concurrent List subjects that matched the three accession subjects.
• The Delhi Agreement, 1952 was a deal between the Union and the state leadership. It opened the way for a much wider order.
• C.O. 48 (1954) was issued with the state's concurrence and replaced C.O. 10. It extended:
  • citizenship
  • most Fundamental Rights, with changes
  • Supreme Court jurisdiction (the court's power to hear J&K cases)
  • most of the Union List
  • the financial provisions
• Later orders extended more, including Arts. 356-357 (President's rule: when the Union takes over the running of a state for a time).

• By 2019, most Union List entries and roughly 260 articles applied to J&K.

• Article 35A

• Let the J&K legislature define "permanent residents" and give them special rights in:
  • state government jobs
  • buying immovable property (land and buildings)
  • settling in the state
  • scholarships
• It was added by a presidential order (C.O. 48, 1954), not by an Art. 368 amendment (the normal route, through Parliament). So it was printed in an appendix, not in the main text.
• Section 6 of the J&K Constitution defined who was a permanent resident.

What was different in J&K before August 2019

• J&K's own constitution: it was adopted on 17 November 1956 and came into force on 26 January 1957. The state also had its own flag.
• Titles of the top offices until 1965:
• The head of government was the "Prime Minister". The title became Chief Minister.
• The head of state was the elected Sadar-i-Riyasat. The post became Governor.

Area	J&K (before Aug 2019)	Other states
National emergency (Art. 352) on grounds of internal disturbance	Needed the state's concurrence	No state consent needed
Financial emergency (Art. 360)	Did not apply	Applies
Directive Principles (Part IV)	Did not apply	Apply
Constitutional amendments (Art. 368)	Applied only if extended, with concurrence, by a presidential order	Apply directly
Residuary power (power over subjects in no list)	With the state	With Parliament (Art. 248)
Assembly term	Six years	Five years
Breakdown of state government	Governor's rule under s. 92 of the J&K Constitution first; Art. 356 was extended later	Art. 356 only
Criminal law	Ranbir Penal Code	Indian Penal Code

In the Constitution and practice

• Location: Art. 370 was in Part XXI. Art. 35A was in an appendix and came from C.O. 48 (1954).
• Who used it: the President, through presidential orders. Until it was dissolved in 1957, the J&K Constituent Assembly also had a role.

Key cases and events before 2019

• Prem Nath Kaul v. State of J&K (1959): a Constitution Bench treated Art. 370 as temporary in nature [2].
• Sampat Prakash v. State of J&K (1969): Art. 370 did not lapse (stop existing) when the J&K Constituent Assembly was dissolved in 1957. So the President could keep issuing orders.
• 2000 autonomy resolution: the J&K assembly sought a return to pre-1953 autonomy. The Union Cabinet rejected it.
• State of J&K v. Sushila Sawhney (2002): a woman who marries a non-resident does not lose her permanent-resident status. This was a J&K High Court ruling.
• "A New Compact for Jammu and Kashmir" (2012): the report of the three interlocutors appointed by the Ministry of Home Affairs.
• We the Citizens v. Union of India (2014): a Supreme Court challenge to Art. 35A. It became infructuous (pointless, because the issue no longer existed) after August 2019.
• In 2019, the Union Cabinet approved the Constitution (Application to J&K) Amendment Order, 2019. This shows the order route was still in use [6].

How Art. 370 ended in 2019, in order

1. 5 August 2019, C.O. 272: issued under Art. 370(1), it applied all of the Constitution, "as amended from time to time", to J&K [4]. - It also changed Art. 367 (the interpretation clause), so that "Constituent Assembly" in Art. 370(3) would be read as the state's Legislative Assembly [2].

2. 5-6 August 2019, statutory resolution: J&K was under President's rule, so Parliament acted in place of the state assembly. It approved a resolution recommending that Art. 370 be made inoperative [5].

3. 6 August 2019, C.O. 273: issued under Art. 370(3), as changed by C.O. 272. Art. 370 stopped applying from 6 August 2019 [2].
4. Jammu and Kashmir Reorganisation Act, 2019: passed by the Rajya Sabha on 5 August and the Lok Sabha on 6 August 2019 [3]. - It created the UT of J&K, with a legislature, and the UT of Ladakh, without one [3]. - Each UT is run by a Lieutenant Governor appointed by the President [3]. - The J&K assembly has 107 seats, and 24 of them stay vacant because they cover areas under Pakistan's occupation [3]. - The Council of Ministers can have no more than 10% of the assembly's members [3]. - 106 central laws were applied, 153 state laws were repealed and 166 state laws were kept [3]. - It also removed the ban on leasing land to people who are not permanent residents [3].

In Re: Article 370 of the Constitution (2023 INSC 1058, 11 December 2023)

• A five-judge Constitution Bench upheld the end of Art. 370 [2][7].
• Main findings: Art. 370 was temporary. J&K had no internal sovereignty. The President's power under Art. 370(3) survived the dissolution of the Constituent Assembly [2].
• The Art. 367 shortcut was not valid: the Union could not use the interpretation clause to amend Art. 370 indirectly [2].
• But the result stands: applying the whole Constitution under Art. 370(1)(d) was valid, and it had the same effect as ending Art. 370 [2].
• Directions: the Election Commission must hold J&K assembly elections by 30 September 2024, and statehood must be restored "at the earliest" [2].

Don't confuse with

• Article 371 series (e.g. Art. 371A, Nagaland): these give one state special protections in some areas but do not limit Parliament's general law-making power. Art. 371A was inserted by the same 13th Amendment, 1962, and these provisions still apply.
• Article 35A: Art. 35A was a product of Art. 370, not the same thing. It came in through a presidential order (C.O. 48, 1954), and it dealt only with permanent residents' rights.
• Instrument of Accession (1947): this document handed over only three subjects. Art. 370 was the constitutional provision that put this limited link into the Constitution and allowed it to be widened by presidential orders.
• Section 92 Governor's rule vs Art. 356 President's rule: s. 92 came from the J&K Constitution and let the Governor take over. Art. 356 comes from the Indian Constitution, and it was extended to J&K only later.

Prelims Hooks

• Art. 35A came from a presidential order (C.O. 48, 1954), not an Art. 368 amendment. This is a common trap.
• 13th Amendment, 1962 added "Special" to the title of Part XXI and inserted Art. 371A for Nagaland.
• Sampat Prakash (1969): Art. 370 did not lapse when the J&K Constituent Assembly was dissolved in 1957.
• Before 2019, Art. 360 (financial emergency) and the Directive Principles did not apply to J&K. The residuary power lay with the state, and the assembly term was six years.
• C.O. 272 (5 August 2019) applied the whole Constitution, and C.O. 273 (6 August 2019) made Art. 370 inoperative [2][4]. The UT of J&K has a 107-seat legislature with 24 seats vacant, and the UT of Ladakh has no legislature [3].
• In Re Article 370 (11 December 2023): the Court rejected the Art. 367 route but upheld the result. It ordered J&K elections by 30 September 2024 [2].

Mains Points

• Asymmetric federalism and "erosion" (GS-II)
• Art. 370 honoured the conditions of accession by giving one unit a different deal.
• Over time, the long chain of presidential orders, each passed with state "concurrence", emptied that autonomy.

• The integration camp wanted one Constitution for all citizens. The autonomy camp pointed to the rejected 2000 resolution, the democracy deficit and the 2012 interlocutors' report (GS-I, post-1947 politics).

• Constitutional method and federal consent (GS-II)

• Rights were changed by executive orders rather than by Art. 368. Art. 35A is the main example.
• In 2019, Parliament gave consent on the state's behalf while the state was under President's rule [5].

• The 2023 Court upheld the outcome but struck down the Art. 367 shortcut [2]. This leaves open the question of how much the states should have a say in changes that affect them.

• Reform agenda

• Restore statehood "at the earliest" and hold elections, as the 2023 judgment directed [2].
• Protect land and jobs for local people through ordinary law or Art. 371-type provisions, rather than through a separate constitutional status.

Related concepts

• Article 35A
• Constitution (Application to Jammu and Kashmir) Order 1954
• Constitution of Jammu and Kashmir

Read more

• Jammu and Kashmir under Art. 370 (1947-2019)