Article 370 of the Indian Constitution, Abrogation, Criticism

Since its inception, Article370 of the Indian Constitution has been the subject of significant debate and discussion. Initially designed to provide special autonomy to the state of Jammu and Kashmir, its abrogation in 2019 marked a turning point in India's constitutional and political history. On August 5, 2019, the Government of India abrogated Article 370 of the Indian Constitution, revoking Jammu and Kashmir's special status. 

Article 370 of the Indian Constitution Background

Article 370 of the Indian Constitution provided Jammu and Kashmir (J&K) with special autonomy, shaping its governance and relationship with India. The article emerged from historical complexities, including the region's pre-independence status and subsequent accession to India during a critical period in 1947.

• Pre-Independence Period: Before India gained independence, Jammu and Kashmir was a princely state ruled by Maharaja Hari Singh. Unlike other princely states, Jammu and Kashmir chose to remain independent after the British left India in 1947. 
  • The region was strategically significant due to its location bordering China, Afghanistan, and the newly created Pakistan.
• Accession to India: In October 1947, facing an invasion by tribal militias from Pakistan, Maharaja Hari Singh signed the Instrument of Accession, agreeing to accede to India under certain conditions. 
  • This treaty allowed Jammu and Kashmir to retain significant autonomy while India was responsible for defence, communications, and foreign affairs.
• Formation of Article 370: To formalise the terms of Jammu and Kashmir's accession, the Indian Constituent Assembly included Article 370 in the Constitution, drafted by Gopalaswami Ayyangar.
  • Temporary Provision: Article 370 was intended to be a temporary provision until the Constituent Assembly of Jammu and Kashmir drafted its constitution and determined the state's relationship with India. 
    • First, it served a transitional purpose, which was to make an interim arrangement to establish a Constituent Assembly of J&K, which would draft the State Constitution. 
    • Second, it was meant to ease the integration of J&K into the Union of India in light of the prevailing war-like situation in the State back in 1947.
  • Autonomy: Article 370 granted Jammu and Kashmir significant autonomy, allowing it to have its own constitution and limiting the Indian Parliament's legislative powers.

Article 370 of the Indian Constitution Introduction

The inclusion of Article 370 in the Indian Constitution was essential to address the unique circumstances surrounding Jammu and Kashmir's accession to India. It was meant to recognise the state's distinct identity and ensure its people that their autonomy would be respected.

Article 370 Constitutional Provisions

Article 370 of the Indian Constitution provided Jammu and Kashmir with special autonomous status, allowing them to have their own constitution and limited legislative powers while outlining residents' rights.

• Special Autonomy: Jammu and Kashmir had their own constitution and autonomy over internal matters except for defence, communications, finance, and foreign affairs.
• Limited Legislative Powers: The Indian Parliament's legislative powers over the state were limited to the subjects mentioned in the Instrument of Accession.
• Presidential Orders: Any extension of Indian laws to Jammu and Kashmir required the concurrence of the state's government and a Presidential Order.
• Separate Constitution: The state had its own constitution, which was adopted on November 17, 1956, and came into effect on January 26, 1957.
• Residency Rights: Article 35A, derived from Article 370, granted special rights and privileges to the state's permanent residents, including property rights and employment.

Article 370 Criticisms

Despite its intentions, Article 370 of the Indian Constitution has been criticised over the years. Critics argued that it fostered a sense of separatism, hindered integration with the rest of India, and impeded economic development and investment in the region.

• A barrier to Integration: Some argued that Article 370 acted as a barrier to Jammu and Kashmir's full integration with the rest of India, instilling a sense of separateness and special status.
• Economic Development: Critics argued that the special status hampered regional economic development and investment because Indian property and business laws did not apply.
• Rights and Equality: The special rights and privileges granted to Jammu and Kashmir residents were interpreted as discriminatory against non-residents, affecting their rights to property and employment.
• Militancy and Insurgency: Some critics blamed Article 370 for the rise of militancy and insurgency in the region, claiming that the special status fostered a sense of alienation and separatism.

Article 370 Abrogation

On August 5, 2019, the Government of India abrogated Article 370 of the Indian Constitution, revoking J&K's special status. This historic move was accompanied by the bifurcation of the state into two Union Territories: Jammu and Kashmir and Ladakh.

Process of Abrogation of Article 370 of the Indian Constitution

The abrogation of Article 370 marked a significant constitutional shift in India, facilitating the integration of Jammu and Kashmir into the Union. This complex process involved a Presidential order, parliamentary approval, and the enactment of the Jammu and Kashmir Reorganisation Act 2019.

• Presidential Order: On August 5, 2019, President Ram Nath Kovind issued the Constitution (Application to Jammu and Kashmir) Order, 2019, which superseded the 1954 order and applied all provisions of the Indian Constitution to Jammu and Kashmir.
• Parliamentary Approval: The Government of India introduced a resolution in the Rajya Sabha to abrogate Article 370, along with a bill to reorganise Jammu and Kashmir into two Union Territories. Both houses of Parliament passed the resolution and the bill with a two-thirds majority.
• Jammu and Kashmir Reorganisation Act, 2019: This act was passed by Parliament to reorganise the state of J&K into two Union Territories: Jammu and Kashmir (with a legislative assembly) and Ladakh (without a legislative assembly). The reorganisation took effect on October 31, 2019.

Article 370 Abrogation Reasons

The abrogation of Article 370 was driven by multiple factors, including the desire for full integration of J&K into India, economic development, and enhanced national security. This move aimed to address issues related to governance, transparency, and the fight against terrorism in the region.

• Hindrance to Integration: The government believed that Article 370 hindered the complete integration of J&K into the Indian Union, fostering a sense of separatism.
• Economic Development: The special status was seen as an impediment to economic development, investment, and infrastructure growth in the region. The abrogation was expected to open opportunities for economic prosperity, tourism, and job creation.
• Combating Terrorism: Article 370 was perceived as being exploited by Pakistan to support terrorism and separatism in the region. The abrogation aimed to strengthen national security by allowing the Indian government to have more control over the region and crack down on terrorist activities.
• Governance: Article 370 was criticised for creating a lack of transparency and accountability in the governance of J&K. The abrogation aimed to bring the region under the purview of central laws like the Central Vigilance Commission and the Right to Information Act, leading to better governance.

Criticisms of the Abrogation of Article 370

The abrogation of Article 370 faced substantial backlash due to legal, political, and human rights concerns. Critics highlighted constitutional violations, potential impacts on local autonomy, and widespread unrest among the population.

• Legal Concerns: Critics argued that the abrogation bypassed the constitutional process, particularly the requirement for the J&K Constituent Assembly's concurrence, which no longer existed.
• Political Opposition: Various political parties and leaders in Jammu and Kashmir viewed the move as an affront to the state's autonomy and identity.
• Human Rights: Concerns were raised about the human rights implications, including restrictions on movement, communication blackouts, and detentions of political leaders.
• Local Sentiments: There were concerns that the move disregarded the sentiments of the local population, leading to political unrest and alienation.

Article 370 Impacts of Abrogation

The abrogation of Article 370 of the Indian Constitution was a significant political move that had wide-ranging impacts on Jammu and Kashmir (J&K) and the rest of India. These included administrative changes, economic impacts, socio-political impacts, and legal challenges.

• Administrative Changes: Following the abrogation, J&K was reorganised into two Union Territories: Jammu and Kashmir and Ladakh. This reorganisation aimed to streamline administration and governance.
• Economic Impact: The removal of Article 370 aimed to attract investment and boost growth, with J&K's GDP rising to 8% in 2022-23, surpassing India's 7%. 
  • Non-residents were allowed to buy property in Jammu and Kashmir, which could lead to more real estate development.
• Social and Political Impact: While the government reported improved security and fewer terrorism incidents, the region remained sensitive, with divided public opinion on the abrogation's effects on autonomy and identity.
• Legal Challenges: Several petitions challenging the abrogation were filed in the Supreme Court of India, raising questions about the constitutional validity and the manner of implementation. The legal challenges continue to be a point of contention.

Article 370 related Supreme Court Cases

It's important to note that while several cases were filed in 2019 challenging the abrogation of Article 370, the Supreme Court ultimately upheld the abrogation in its December 2023 judgement.

• Shah Faesal & Others v. Union of India (2019): Multiple petitions were filed challenging the Presidential Orders that abrogated Article 370 and reorganised the state of Jammu and Kashmir.
• The Supreme Court formed a Constitution Bench to assess the legality of the abrogation process and whether the President could revoke Article 370's special status without the Jammu and Kashmir Constituent Assembly's consent. The case included related petitions on the same issue.
• Manohar Lal Sharma v. Union of India (2019): This petition also challenged the Presidential Orders on the grounds that they violated the basic structure of the Constitution and bypassed democratic processes.
  • The Supreme Court combined this case with the other petitions and referred the matter to the Constitution Bench. 
  • The Court issued notices to the Union Government seeking responses but has not issued a final ruling.

Article 370 Future

The abrogation of Article 370 marked a significant shift in the constitutional and political landscape of Jammu and Kashmir. While the government justified the move on the grounds of integration, development, and national security, it also faced substantial criticism regarding constitutional validity, impact on autonomy, and potential demographic changes. Following are some steps needed to address the existing issues:

• Infrastructure Development: Enhancing infrastructure to support economic activities and improve quality of life.
• Education and Employment: Investing in education and creating employment opportunities to address socio-economic disparities.
• Political Dialogue: Engaging in political dialogue with various stakeholders in J&K is essential to addressing grievances and building trust. Inclusive political processes can help achieve lasting peace and stability.
• Legal Clarity: The ongoing legal challenges need resolution to provide clarity and stability. The Supreme Court's judgments on the abrogation will be crucial in shaping the future course of action.
• Security Measures: Maintaining security while ensuring the protection of human rights is vital. A balanced approach to security and civil liberties will help maintain peace and foster development.
• Promoting Unity: Efforts must be made to promote unity and integration while respecting Jammu and Kashmir's cultural and regional identities. This involves inclusive policies that cater to the region's diverse population.

Article 370 of the Indian Constitution UPSC PYQs

Question 1: To what extent is Article 370 of the Indian Constitution, bearing the marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss The future prospects of this provision in the context of Indian polity. (UPSC Mains 2016)

Article 370 of the Indian Constitution FAQs

Q1. What does Article 370 of the Indian Constitution say?

Ans. Article 370 of the Constitution of India gave the states of Jammu and Kashmir a special status, granting them a degree of autonomy within the Indian Union.

Q2. What is Article 370 and why is it removed?

Ans. Article 370 was temporary, which granted Jammu and Kashmir special powers to establish their constitutions. It was removed by the presidential order for region’s economic development.

Q3. Why is Article 370 so important?

Ans. The state was exempted from the full application of the Indian Constitution and allowed to create its own constitution, with central legislative powers limited to defence, foreign affairs, and communications.

Q4. What are the benefits of 370 removals in Kashmir?

Ans. Articles 370 and 35A restrict land transfers, boosting local horticulture and food processing. The handicraft industry can now export directly and collaborate nationally and internationally.

Q5. Who proposed Article 370?

Ans. Ayyangar was the chief drafter of Article 370 which granted local autonomy to the state of Jammu and Kashmir.