By Nethra Katikaneni

Abstract

The abrogation of Article 370 in Jammu and Kashmir was a major constitutional change that
sparked arguments about its possible legal ramifications. This article explores the complex
constitutional dynamics that surround the repeal of Article 370 and the ensuing ramifications. By
a brief summary of Article 370, outlining its historical significance and tracking its development
from the beginning, the paper then looks at the constitutional processes that were followed and
the power granted to the decision-making process as it relates to the legal context in which the
revocation occurred. Additionally, it examines how the removal of Article 370 affects Jammu
and Kashmir’s special status, taking into account implications for autonomy, rights, and
governance. The revocation’s legal issues and problems are also covered in this shedding light onthe intricate legal landscape that the repeal of Article 370 has created and how it affects Jammu
and Kashmir’s constitution.

The History of Jammu & Kashmir’s Special Status

Jammu and Kashmir was a princely state with a majority of Muslims and a Hindu king that
shared a long border with both India and Pakistan. Tensions were high in 1947, the year of the
partition of India and Pakistan. Maharaja Hari Singh, the former head of the State of Jammu and
Kashmir, found himself in a difficult situation as he had no desire to join the recently democratic
India and no inclination to support Pakistan, which is ruled by Muslims. He was in favour of
Kashmir staying a separate nation. As a result, on October 27, 1947, Singh signed the
“Instrument of Accession” (IoA), thereby annexing Jammu and Kashmir to India. But there were
restrictions in place. The State would not be entirely under the authority of India. This document
limited the subjects on which the Indian Parliament may pass laws to defence, foreign policy,
and communications. The State of Jammu and Kashmir was left in charge of everything else.
Furthermore, the Indian Constitution, which was still in the drafting stages, did not bind the
State. 

The IoA further stipulated that the Indian government could not alter it unless authorised by an
addendum to the IoA. To put the IoA into force, the constituent assembly proposed Article 370
which stated “Temporary provisions concerning the State of Jammu and Kashmir”. It was
implemented with the intention of facilitating Jammu and Kashmir’s transformation from an
autonomous princely state to a democratic state in India. The Constituent Assembly of Jammu
and Kashmir was established on October 31, 1951. The Constitution for Jammu and Kashmir
was drafted by this Assembly in 1956, stating that the region “is and shall be an integral part of
the Union of India.” After drafting the State’s Constitution, the Constituent Assembly was
permanently dissolved on January 26, 1957.

The Abrogation Process

Article 370 restricts Parliament’s ability to enact laws pertaining to the state and gives Jammu
and Kashmir unique status. The ruling Bharatiya Janata Party (BJP) declared its aim to repeal
Article 370 in its election manifestos for the general elections of 2009, 2014, and 2019. In its
Lok Sabha election manifesto, BJP suggested eliminating Article 370 of the Constitution and
according to their manifesto, the administration is dedicated to removing all barriers to J&K’s growth. Following the election, the BJP government issued two presidential orders dissolving
Article 370. Article 35A was eliminated along with Article 370, allowing non-Kashmiris to own
real estate in the area and igniting concerns that India is attempting to manipulate a
“demographic shift” in the Muslim-majority area. In 2019, the Modi administration further
divided Kashmir into two areas, to be administered directly from New Delhi: Jammu and
Kashmir in the west and Ladakh in the east. The criminal law, the constitution, and the flag of
Kashmir were all taken away by Article 370.

On December 11 2023, the Supreme Court affirmed the constitutionality of the Union
Government’s 2019 decision to remove Jammu and Kashmir’s (J&K) special status under Article 370. The State of J&K lacked internal sovereignty, according to the Court, and the State
Government’s approval was not necessary in order to apply the Indian Constitution to the State of
J&K. It was decided that Article 370 was only intended to be a temporary provision. The
Solicitor General’s statement, which stated that the Union would promptly reinstate J&K as a
state, prevented the Court from ruling on the legality of J&K’s reorganisation into Union
Territory. On the other hand, Ladakh’s designation as a Union Territory was maintained. The
Election Commission of India was also instructed by the Court to move forward with holding
elections for the J&K Legislative Assembly by September 30, 2024. The court further stated that
even in the event of the J&K Constituent Assembly’s dissolution, the President may still exercise
his authority under Article 370(3) to declare that Article 370 is no longer in effect.

The J&K Constituent Assembly’s recommendation was not legally binding on the President,
according to the ruling. The J&K Constituent Assembly was meant to be a transient entity. The
unique circumstance for which section 370 was introduced vanished along with the constituent
assembly, but the state’s circumstances persisted, and the article went on. The court concluded
that claiming that the authority granted by Article 370(3) ends upon the dissolution of the J&K
Constituent Assembly would cause the integration process to stall. According to the court’s
ruling under Article 370(1)(d), the State government’s consent was not necessary in order to
apply all of the Constitution’s provisions, nor was it necessary to adhere to the principles of
consultation and partnership while exercising presidential power. Therefore, it was not dishonest
for the President to accept the Union Government’s approval.

LEGAL AND CONSTITUTIONAL ASPECTS OF ARTICLE 370

The Indian Constitution’s Article 370 gave the Jammu and Kashmir territory temporary special
autonomy. It was a divisive topic whose legal and constitutional implications have been
discussed and interpreted. Jammu and Kashmir was granted special autonomy under Article 370,

which allowed the state to have its own flag, constitution, and authority over all areas of
government except communications, defence, foreign policy, and finances. This unique status
was considered as a way to meet the region’s varied political and cultural ambitions. In the aspect
of its integration with India, Jammu and Kashmir was regarded as an essential component of
India, even though it was an autonomous region. Nonetheless, the state and the Indian Union had
a distinctive connection because of the special status granted by Article 370. It shaped the
political landscape of the region, influencing electoral dynamics, governance structures, and
relations with the central government.

Numerous constitutional modifications have been implemented throughout time, diminishing the
independence provided by Article 370. Among these was the extension of certain clauses from
the Indian Constitution to Jammu and Kashmir, which lessened the region’s unique status. Over
the years, there have been several legal challenges to Article 370, with discussions concerning its
constitutional legitimacy and constitutionality. While some claimed it should be repealed since it
had outlived its usefulness, others maintained that any modifications needed the approval of the
state government of Jammu and Kashmir. The Indian Constitution needed to be significantly
amended in order to repeal Article 370, especially the sections that related to Jammu and
Kashmir wherein these modifications were approved by the Indian Parliament. Article 370’s
special status for Jammu and Kashmir has an impact on India’s ties with its neighbours,
especially Pakistan. In international forums and bilateral negotiations, the region’s contested
nature and unique constitutional position frequently arose as topics of contention. In addition to
being topics of political discussion, the legal and constitutional implications of Article 370 were
also greatly impacted by public opinion and the viewpoints of numerous stakeholders, such as
political parties, members of civil society, and citizens of Jammu and Kashmir. The Indian
government implemented a number of reforms after Article 370 was repealed with the goal of
advancing integration, development, and governance in Jammu and Kashmir. These reforms
included adjustments to investment strategies, administrative structures, and land laws.

CONCLUSION

A turning point in India’s constitutional history has been reached with the repeal of Article 370 in
Jammu and Kashmir, which has changed the legal environment and the dynamics of regional
governance. The revocation of Article 370 has wide-ranging legal and constitutional
repercussions, despite being motivated by political imperatives and ambitions for closer
integration. The government’s actions are legitimised by the Supreme Court’s confirmation of the
revocation’s legitimacy, but it also presents significant issues regarding the distribution of power
between the federal government and the states, the extent of the executive branch, and the
defence of minority rights.

The Court’s decision makes the legal context of Article 370 clearer, but it also emphasises how
important it is to have strong constitutional protections in place to stop the arbitrary use of
authority. Reversing Article 370 will have a significant impact on Jammu & Kashmir’s socio-
political landscape. It has sparked optimism for growth and advancement but has also given rise
to concerns about cultural identity erosion and autonomy loss. The division of the state into the
two Union Territories of Jammu and Kashmir and Ladakh creates additional challenges to the
system of governance and calls into question issues of accountability and representation.
Following the abrogation, the Indian government initiated a range of reforms with the objective
of stimulating prosperity, augmenting security, and cultivating integration. The effectiveness of
these reforms to address the fundamental complaints of the people of Jammu and Kashmir, such
as unemployment, alienation, and the legacy of conflict, will determine their success, though.

To create a peaceful and successful future for Jammu and Kashmir, inclusive discussion,
reconciliation, and empowerment are critically needed. Three crucial foundations of this
endeavour include  the promotion of economic possibilities, the preservation of human rights,
and the rebuilding of democratic institutions. India can lead the way towards enduring peace and
security in the region by adhering to the ideals of justice, equality, and pluralism. This would
guarantee that Article 370 leaves a legacy of progress and prosperity for all its citizens.

Author’s bio

Nethra Katikaneni is a law student at Jindal Global Law School, OP Jindal Global University
and is a columnist at Nickeled and Dimed.