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

Detail

1. Accession: the starting point

• 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 kept 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].

• The UN route and the promise of provisional autonomy belong to the post-1947 politics story (Class 12, "Regional Aspirations").

2. Where Art. 370 sat in the Constitution

• Art. 370 was in Part XXI of the Constitution.
• Part XXI was first titled "Temporary and Transitional Provisions".
• The 13th Amendment, 1962 added the word "Special". The title became "Temporary, Transitional and Special Provisions". The same amendment also inserted Art. 371A for Nagaland.
• Art. 370 was a temporary provision (meant as an interim arrangement, not a permanent one). It limited Parliament's power in J&K to the matters the state agreed to.

3. The clauses of Art. 370 (text before 2019)

Clause	What it said	Why it mattered
370(1)(b)	Parliament could make laws on Union List and Concurrent List matters that matched the Instrument of Accession after consulting the state government. For all other matters it needed the state government's concurrence.	It kept Parliament's law-making power in J&K small
370(1)(d)	Other parts of the Constitution applied to J&K only through presidential orders, with any changes ("exceptions and modifications") the President chose	The President became the main channel for extending the Constitution
370(2)	If the state government agreed to something before the state's Constituent Assembly met, that agreement had to be placed before the Assembly for its decision	The final say rested with the J&K Constituent Assembly
370(3)	The President could, by public notification, declare that Art. 370 would stop working, but only on the recommendation of the J&K Constituent Assembly	This was the "exit door" from Art. 370

• Consultation vs concurrence:
• Consultation means the Union has to ask for the state's view but does not have to follow it.
• Concurrence means the Union needs the state's actual agreement.

4. Presidential orders: how the Constitution reached J&K

• Presidential order: an order the President issued under Art. 370(1)(d) to apply parts of the Indian Constitution to J&K.

Step-by-step build-up

• Constitution (Application to J&K) Order 1950 (C.O. 10):

• Applied the Union and Concurrent List subjects that matched the three accession subjects.

• Delhi Agreement, 1952:

• A deal between the Union government and the state leadership.

• It led to the next, much wider order.

• Constitution (Application to J&K) Order 1954 (C.O. 48):

• Issued with the state government's concurrence.
• It 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
• It inserted Art. 35A.

• Class 11 NCERT ("Federalism") calls the 1950 and 1954 orders "two Constitutional orders".

• Later orders (1954-2019):

• They extended more of the Constitution, including Arts. 356-357 (President's rule).
• By 2019, most Union List entries and roughly 260 articles applied to the state.
• The order route was still being used in 2019. That year the Union Cabinet approved the Constitution (Application to J&K) Amendment Order, 2019 [6].

Court rulings on whether Art. 370 was temporary

• 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):
• The J&K Constituent Assembly was dissolved in 1957.
• The Court held that Art. 370 did not lapse (stop existing) when this happened.
• So the President could keep issuing orders under it.

5. Article 35A: who counted as a J&K resident

• Article 35A: a provision that let the J&K legislature:
• define "permanent residents" of the state, and

• give them special rights.

• What the state could keep only for permanent residents:

• state government jobs
• the right to acquire immovable property (land and buildings)
• settlement in the state

• scholarships

• How it entered the Constitution:

• It was added by a presidential order (C.O. 48, 1954).
• It was not added by an Art. 368 amendment (the normal way of changing the Constitution, through Parliament).

• So it did not appear in the main text of the Constitution. It was printed in an appendix.

• Link to the J&K Constitution: Section 6 of the J&K Constitution defined who was a permanent resident.

• Women's status:

• State of J&K v. Sushila Sawhney (2002): the J&K High Court ruled that a woman who marries a non-resident does not lose her permanent-resident status.

• Court challenge:

• We the Citizens v. Union of India (2014) challenged Art. 35A in the Supreme Court.

• The case became infructuous (pointless, because the issue no longer existed) after August 2019.

• End of Art. 35A: it stopped applying in August 2019.

• C.O. 272 (5 August 2019) applied all provisions of the Constitution, "as amended from time to time", to J&K [4].
• The Jammu and Kashmir Reorganisation Act, 2019 then removed the ban on leasing land to people who were not permanent residents [3].

6. The Constitution of Jammu and Kashmir

• J&K was the only state with its own constitution.
• Adopted: 17 November 1956.
• In force: 26 January 1957.
• The state had its own flag.
• Titles of the top offices until 1965:
• The head of government was called "Prime Minister". In 1965 the title became Chief Minister.

• The head of state was the Sadar-i-Riyasat, an elected head. In 1965 this post became Governor.

• Section 92 of the J&K Constitution provided for Governor's rule. When the state's constitutional machinery failed, the Governor took over, separately from Art. 356.

• The Ranbir Penal Code was used in J&K instead of the Indian Penal Code.

7. What was still different before 2019 (Class 11 list, expanded)

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 through a presidential order	Apply directly
Residuary power (power over subjects not in any list)	With the state	With Parliament (Art. 248)
Assembly term	Six years	Five years
State failure	Governor's rule under s. 92 first; Art. 356 also extended later	Art. 356 only
Criminal law	Ranbir Penal Code	Indian Penal Code

8. Two opposite political reactions (Class 12)

• Full integration camp:

• Argued that special status kept J&K apart and should end.

• "Greater State Autonomy" camp:

• Argued that autonomy had been eroded (slowly worn away) by the long chain of presidential orders.
• Raised the plebiscite demand (a vote of the people on the state's future).

• Pointed to a democracy deficit: elections that were not seen as free, and governments imposed from Delhi.

• 2000 autonomy resolution:

• The J&K assembly passed a resolution seeking a return to pre-1953 autonomy.

• The Union Cabinet rejected it.

• "A New Compact for Jammu and Kashmir" (2012):

• The report of the three interlocutors appointed by the Ministry of Home Affairs.
• It is the other reference point for the autonomy debate.

9. How Art. 370 ended (2019) and the 2023 judgment

The 2019 route, in order

• 5 August 2019 — C.O. 272:
• Issued under Art. 370(1).
• It applied all of the Constitution to J&K [4].

• It also changed Art. 367 (the interpretation clause). Under the change, "Constituent Assembly" in Art. 370(3) was to be read as the state's Legislative Assembly [2].

• 5-6 August 2019 — statutory resolution:

• The state was under President's rule, so Parliament acted in place of the state assembly.

• Parliament approved a resolution recommending that Art. 370 be made inoperative [5].

• 6 August 2019 — C.O. 273:

• Issued under Art. 370(3), as amended by C.O. 272.

• Art. 370 stopped applying from 6 August 2019 [2].

• Jammu and Kashmir Reorganisation Act, 2019:

• Passed by the Rajya Sabha on 5 August 2019 and the Lok Sabha on 6 August 2019 [3].
• It created two Union Territories [3]:
  • UT of Jammu and Kashmir, with a legislature
  • UT of Ladakh, without a legislature
• Each UT is run by a Lieutenant Governor appointed by the President [3].
• The J&K assembly has 107 seats. 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].
• Changes to laws [3]:
  • 106 central laws applied
  • 153 state laws repealed
  • 166 state laws kept

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

• A five-judge Constitution Bench upheld the end of Art. 370 [2][7].
• Main findings [2]:
• Art. 370 was a temporary provision.
• J&K had no internal sovereignty different from other states.

• The President's power under Art. 370(3) survived even after the J&K Constituent Assembly was dissolved.

• On using Art. 367:

• The Court held that using Art. 367 to amend Art. 370 indirectly was not valid [2].

• Applying the whole Constitution under Art. 370(1)(d) was valid. It had the same effect as ending Art. 370 [2].

• Directions [2]:

• The Election Commission must hold J&K assembly elections by 30 September 2024.
• Statehood must be restored "at the earliest".

Prelims Hooks

• The 13th Amendment, 1962 added the word "Special" to the title of Part XXI. It also inserted Art. 371A for Nagaland.
• Art. 370(1)(b): for Union and Concurrent List matters matching the Instrument of Accession, Parliament had to consult the state. For all other matters it needed the state's concurrence.
• Art. 35A came in through a presidential order (C.O. 48, 1954). It was not added by an Art. 368 amendment. This is a common trap.
• Sampat Prakash (1969): Art. 370 did not lapse when the J&K Constituent Assembly was dissolved in 1957.
• J&K Constitution: adopted on 17 November 1956, in force from 26 January 1957. Section 6 of it defined "permanent residents".
• Before 2019, these did not apply to J&K:
• financial emergency (Art. 360)

• Directive Principles

• J&K also had a six-year assembly term and kept the residuary power with the state.

• C.O. 272 (5 August 2019) applied the whole Constitution to J&K. C.O. 273 (6 August 2019) made Art. 370 inoperative [2][4].
• Reorganisation Act, 2019: the UT of J&K has a legislature of 107 seats, 24 of them vacant. The UT of Ladakh has no legislature [3].
• In Re Article 370 (11 December 2023): the Court upheld the abrogation and ordered J&K assembly elections by 30 September 2024 [2].

Mains Points

• Asymmetric federalism (GS-II):
• Art. 370 shows how India's federal design could give one unit a different deal.
• On one side, it honoured the conditions of accession.
• On the other, the long chain of presidential orders and the Art. 370(1)(b) concurrence system emptied that autonomy over time (the "erosion" argument).

• This connects to the Art. 371 series and the Sixth Schedule.

• Integration vs autonomy (GS-I, post-1947 politics):

• The integration camp argued for one Constitution for all citizens.

• The autonomy camp pointed to the rejected 2000 autonomy resolution, the democracy deficit and the 2012 interlocutors' report as signs of unmet aspirations.

• Constitutional method (GS-II):

• Rights changed through executive orders, not through Art. 368 (example: Art. 35A).
• In 2019, Parliament approved the change on the state's behalf while the state was under President's rule.
• Both points raise questions about federal consent.

• The 2023 Court upheld the result but rejected the Art. 367 shortcut [2].

• Reform agenda:

• Restoring statehood and holding elections, as the 2023 judgment directed [2].
• Protecting land and jobs for locals through ordinary law (as under Art. 371-type provisions) rather than through special constitutional status.