On

A SNAKE WITHOUT POISON

(ARTICLE 370)

Submitted towards the partial fulfilment of grading for the 1 st semester of

bachelor of law

under the supervision and guidance of :-

Mr. sachin bhardwaj

SCHOOL OF LAW, LOVELY PROFESSIONAL UNIVERSITY

Submitted by :-
Megha Saxena – 11915348
Aman Kathuria- 11915048
Kumar Surya Parkash- 11901569

SUBJECT CODE – LAW 110

Transforming Education Transforming India

LOVELY PROFESSIONAL UNIVERSITY

PHAGWARA- 144411, INDIA
 CONTENT

1. INTRODUCTION
2. WHAT IS ARTICLE 370
3. HISTORICAL BACKGROUND
4. DISTINCTION BETWEEN ARTICLE 370 AND 35A
5. ARTICLE 370 OF THE CONSTITUTION OF INDIA AND J&K
6. STATUS OF PERMANENT RESIDENTS OF KASHMIR
7. NEGATIVE IMPACTS OF ARTICLE 370 ON THE RIGHTS OF PEOPLE
8. ABROGATION OF ARTICLE 370
9. THE CONSTITUTIONAL LEGITIMACY OF ABROGATING ARTICLE 370
10. WHAT WILL HAPPEN TO JAMMU AND KASHMIR NOW?
11. LANDMARK CASES ON ARTICLE 370
12. LEGAL WORK BEHIND SCRAPPING OF ARTICLE 370
13. IS IT BROUGHT PEACE OR CONFLICT?
14. SUMMARY
15. CONCLUSION
 CERTIFICATE

I hereby certify that this research entitled “A SNAKE WIHTOUT POISON (ARTICLE 370)”
submitted for the award of degree of bachelor of law of research work done by the candidate
“Megha Saxena, Aman Kathuria, Kumar Surya Parkash” during the period of his/her study under
my guidance at school of law, Lovely Professional University, Phagwara, Punjab and that the
research has not formed the basis for the award of any degree, associateship, fellowship or other
similar titles to the candidate. I further certify that research represents the independent work of the
candidates.

Place:- Mr. Sachin Bhardwaj

Assistant Professor
 Declaration

I hereby declare entitled “A SNAKE WITHOUT POISON ARTICLE 370” a research report
submitted to the school of law, Lovely Professional University for the award of degree of bachelor
of law (LL.B) is a record of original and independent research work done by me under the
supervision and guidance of Mr. Sachin Bhardwaj, assistant professor, school of law, Lovely
Professional University and that the research has not formed the basis for the award of any degree,
diploma associateship or similar titles.

Place :- Aman Kathuria

Megha Saxena
Kumar Surya Parkash

Date:-
 INTRODUCTION 1

1
Article 370: India strips disputed Kashmir of special status, available at:
https://www.bbc.com/news/world-asia-india-49231619 ( last modified Aug 5,2019).
 Article 370 of indian constitution have given the special status to indian constitution which is a
state of india, located in northern part of indian subcontinent. This only region leads to many
disputes among countries like india, pakistan and china since 1947. Jammu & kashmir is a part of
india but have many different powers which seperates it from india. For eg:- jammu & kashmir
have their own seperate constitution, a state flag, and autonomy over the internal administration
(rule of only one authority, where there is no democracy) of the state. But now in the present
scenario as we all know that government of india revoked the special status of jammu & kashmir
written in Article 370 in august 2019 through presidential order. The article was drafted in part XXI
of the indian constitution.

After the establishment of constituent assembly of jammu and kashmir it was empowered to
recommend the articles of the indian constitution that should be applied to the state or to abrogate
the article 370 altogether. After consultation of state constituent assembly, the 1954 presidential
order was issued, specifying the articles of the indian constitution that applied to the state. Since the
constituent assembly dissolved itself without recommending the abrogation of article 370, the
article was deemed to have become a permanent feature of the indian constitution.

Along with article 370, there is aticle 35-A which defines the jammu & kashmir state's residents
who lives under separate set of laws which includes citizenship, ownership of property and
fundamental rights as compared to the residents of the other states of india. Because of which the
people who lives in india are not allowed to purchase land in jammu & kashmir.

After this in present scenario our president Mr. Ram Nath Kovind issued a constitutional order for
superseding the 1954 order on 5th august 2019 along with making all the provisions of the indian
constitution applicable to jammu and kashmir based on the resolution passed in both houses of
indian parliament with 2/3rd majority. Story is continued after this also and the new act passed
named jammu and kashmir reorganisation act which was passed by parliament which results into
division of a state of jammu and kashmir into two union territories named as union territory of
jammu and kashmir and union territory of ladakh. And this act of reorganisation was passed on 31st
october.

This results to change the counting of the state and union territory of our country india, as before
the jammu and kasmir reorganisation act passed the total states was 29 states and 7 union territories
and after passing of reorganisational act of jammu and kashmir by both the houses of parliament the
present condition is the country india now have 27 states and 9 union territories which is made after
division of the state jammu and kashmir.
 WHAT IS ARTICLE 370 ? 2
Article 370, which is news recently and is a burning now a days. As this article separates jammu
and kashmir with rest of the states of india by providing temporary provisions and granting special
status to it. Because of article 370 in place, all the provisions of the constitution which are
applicable to all the states of india are not applicable to state of jammu and kashmir. It only follows
ranbir penel code instead of indian penal code. It also it had Sadr-e-Riyasat instead of governor and
prime minister instead of chief minister till 1965.

All the laws apart from communication, foreign affairs, finance and defence also the indian
government depend on the consent of the jammu and kashmir state. Moreover, the centre cannot
declare financial emergency under article 360 in the state of jammu and kashmir except for the
situation like war and external violence.

HISTORICAL BACKGROUND 3
Geographical Location Of The State
To understand the complex legal and political events that lead to the development of the Kashmir
issue as we see it today, it is necessary to study the history of the state along with the geographical,
social, economic, religious and also political developments that occurred within of the state of
jammu and kashmir. India's geographical conditions profoundly influenced influenced her historical
development. The most important to understand is the location of the state of jammu and kashmir
which help to put light on the main topic. The state situates at the apex of the indian sub-continent
and shares common borders with China, Tibet, Pakistan and afghanistan. The state of jammu and
kashmir is located in a very strategic position which has made it the centre of several intense
international rivalries. The state being almost entirely a mountainous region it forms a natural
barrier protecting india from foreign invasion. The occupation and control over the valley is
therefore of great military importance.
Jammu and kashmir lies between 30 degrees and 37 degrees north and 73 degrees and 80 degrees

2
Explainer: What is Article 370? Available at:
https://www.thehindubusinessline.com/news/national/explainer-what-is-
article-370/article28822446.ece (last modified Aug 5, 2019)

3
Historical Background and Provisions Available at: https://www.mapsofindia.com/my-
india/politics/what-is-your-opinion-should-government-take-a-step-to-abolish-
the-article-370-or-not (last modified May 30, 2014)
 east and comprises of four natural regions being kashmir, jammu, gilgit and ladakh.
The state of jammu and kashmir comprises of an area of approximately 2,22,236 sq. Km, out of
which 78,114 sq. Km has been under the occupation of pakistan since 1948, out of which 5,180 sq.
Km of gilgit and baltistan has been illegally handed over to china by pakistan in 1963 and is
presently under the occupation of china. This includes 37,555 sq. Km, which is under illegal
occupation of china since 1962. The state of jammu and kashmir is the only state in the indian union
whose borders are not yet settled.

THE REIGN OF MAHARAJA HARISINGH 4

Maharaja pratap singh who was former king of state jammu and kashmir was died in 1925 without
any heir and was succeeded by his brother amar singh's only son hari singh. Maharaja hari singh
was already the commander-in-chief of the state army and was also a senior member of the state
council. While he was about to ascend the throne or in other words on ascending the throne
Maharaja Hari Singh introduced a series of reforms in the State's economic, social, judicial and
education systems.

During the reign of Maharaja Hari Singh the Kashmiri Pundits had also started an agitation within
the state known as 'kashmir for kashmiris'. The demand of the leaders of the said movement was the
recruitment of the educated sons of the soil in government services, ban on the sale of land to
outsiders, freedom of the press, freedom of association and assembly. On 31st january1927,
maharaja hari singh issued an order defining the term ''mulkis'', which in simple words means state
subjects. The said orders by maharaja hari singh also provided that now onward from this date the
outsiders, are not allowed to purchase immovable property within the state of jammu and kashmir.
On 20th arpril 1927 the Maharaja Hari Singh issued a notification of No. I-L/84, which defines
simply the state subjects.

4
MAHARAJA HARI SINGH : THE LAST RULER OF JAMMU & KASHMIR By. Col. J.P.
Singh (Retd). Available at: https://www.facebook.com/notes/jammu-links-news/maharaja-
hari-singh-the-last-ruler-of-jammu-kashmir-by-col-jp-singh-retd/154289731258046/ (last
modified sept 19, 2010)
 The said notification states as follows by Maharaja Hari Singh-
The term state subject means and includes-5

Class I – All persons born and residing within the state before the commencement of the reign of
his highness the Late Maharaja Ghulan Singh Sahib Bahadur, and also persons who settled there in
before the commencement of samvat year 1942, and have since been permanently residing therein.

Class II – All persons other than those belonging to Class I who settled within the state before the
close of samvat year 1968, and have since permanently resided and acquired immovable property
therein.

Class III – All persons other than those belonging to Class I and Class II permanently residing
within the state, who have acquired under a rayatnama any immovable property therein or who may
hereafter acquire such property under an ijazatnama or rayatnama after ten years continous
residence therein.

This regulation was meant to protect the people of jammu and kashmir from outsiders coming from
the neighbouring state's but the bitter truth is that the discrimination still continued, especially
against the muslim majority. If noticed, all high posts were still occupied mainly by dogras and
rajputs and the state army comprised only of Dodras and Dards and Kashmiris were intentionally
excluded from the Armed Forces. On 14th August 1931, the All India Kashmir Muslim Conference
of Lahore observed it a Kashmir Day throughout India, icluding kashmir.

By 1931, the protest by the kashmiri muslim polpulation against communal discrimination became
so vocal that the Maharaja had to use all means at his disposal in order to control the said agiations.
Ultimately the Maharaja was compelled to make a proclamation announcing that any section of his
subjects could submit their reasonable demands for consideration of the Maharaja and on the basis
of the said proclamation Maharaja Hari Singh received several memorials for consideration.
The common demand made in the said memorials was a demand for representative government

5
MAHARAJA HARI SINGH : THE LAST RULER OF JAMMU & KASHMIR By. Col. J.P.
Singh (Retd). Available at: https://www.facebook.com/notes/jammu-links-news/maharaja-
hari-singh-the-last-ruler-of-jammu-kashmir-by-col-jp-singh-retd/154289731258046/ (last
modified sept 19, 2010)
 along with equal rights and equal treatment of all the state subjects.

The instrument of accession for the state of jammu and kashmir was signed by maharaja hari singh
on 26th october, 1947, making the state an state an integral part of the newly independent india. 6
Along with this it also marked as the longest standing conflict in south asia. Out of these the most
desperate of circumstances, the wily maharaja still managed to insert clauses into the agreement to
ensure indian jurisdiction or in other words the decisions of the central government should confined
to defence, external affairs and communications and these clauses were meant as safeguards to his
own sovereignity. It is also signified through some clues that the maharaja's difficulty in swallowing
a situation was not only with jawaharlal nehru, prime minister of india but also with sheikh abdulla,
who had consistently opposed maharaja over 20 years. Despite some or many opposition from
constituent assembly of india, the issue never drew the kind of vehelment opposition that would
have ensured its timely burial, and ultimately it became the effective precursor to Article 370 of the
indian constitution. As Dr. B R Ambedkar oppossed Article 370 of our indian constitution in
drafting the article, owing its bias and unequal dispensation within the framework of independent
india's constitution, the task was entrusted to Gopal Swami Ayyangar, who is trusted by Prime
Minister, Jawaharlal Nehru and a former aide of the maharaja. Here one person named Ayyangar
argued that the special article governing jammu and kashmir was due to special conditions of its
accession to india along with the military conflict that had overtaken it immediately. After that
further, with the involvement of the united nations, it was seen as a positive projection as coming
into existence of indian republic as it trying to base such issues on the will of the people.

Thus Article 370 confers special status to the state of jammu and kashmir which is one of the reason
of causing annoyance and confusion of ccontemporary indian politics. In fact, the inequality from
very beginning or we can say inherent inequality gave rise to the entire debate about a special
status given unlike other princely states which acceded to inida in 1947.

To Be Continued...
In the nutshell, it is not said to be correct that Article 370 didn't have any opponents in the past

6
Remembering Maharaja Hari Singh, available at:
https://timesofindia.indiatimes.com/blogs/voices/remembering-maharaja-
hari-singh/ (Last Modified Sept 23, 2018).
 history. A great thinker and the poet, Maulana Hasrat Mohini, raised a question in the constituent
assembly on October 17, 1949 regarding the insertion of Article 370 in the constitution and he also
asked for the reason of discrimination because of Article 370 in the constitution. Even BR
Ambedkar, the architect of the indian constitution, refused to draft Article 370. Sardar Vallabhai
Patel was also against the inclusion of this article because it was a way to discriminate. 7

The article was finally drafted by Gopalaswami Ayyangar, who was a minister with portfolio in the
first union cabinet of indi. He was in the favour of Article 370 because kashmir at that time was
ready to be integrated in india, like all the states were ready to be integrated in india because of war
with Pakistan over Jammu and kashmir.

Pandit jawaharlal Nehru was also in favour of Article 370 but said that it was a temporary provision
and would be abolished after some period of time. Thus, the Article 370 was temporary and drafted
with a hope that one day the state will become a part of india. Which now happened.

At the time off partition, Lord Mountbatten asked Pandit Jawaharlal Nehru to take the issue of
Jammu and Kashmir conflict to UN but Sheikh Abdullah, the then appointed Prime Minister of
Jammu and Kashmir, convinced Pandit Jawaharlal Nehru to grant special status to the state of
Jammu and Kashmir because Abdullah wanted to rule the princely state as autonomous ruler (which
means where all the powers are in one hand, only person is the ruler). The Article 370 was drafted
and included in the constitution. At the same time, an international aspect was also incuded or added
to the india-pakistan conflict over the Jammu and Kashmir problem, as the united nation had to
intervene.

Though Aricle 370 does not discriminate between male and female, females had to seek fresh status
of permanent resident of the state after marriage. Also, the borders of the state can neither be
reduced nor expanded under Article 370. The article does not allow people from other states to
purchase land in Jammu and Kashmir.

Jammu and Kashmir chief minister Omar Abdullah had once said that Article 370 defines the

7
Remembering Maharaja Hari Singh, available at:
https://timesofindia.indiatimes.com/blogs/voices/remembering-maharaja-
hari-singh/ (Last Modified Sept 23, 2018).
 relationship between the state and the government of india and if it is abolished then it will revive
the topic of Jammu and Kashmir's accession to india. It is the only link between the state and the
rest of india.

The Jammu and Kashmir pradesh congress committee (JKPCC) is in favour of the Article 370 and
considers it an important part of the constitution. According to them, it is the only way to get the
benefits of central law to the state.

There are many controversies regarding Article 370 of the constitution which gives special status to
the state of Jammu and Kashmir and from many one of the recent controversy occurred when the
Minister of state Jitendra Singh sought a debate on Article 37. Though he later said that he was
misquoted, the Jammu and Kashmir Chief Minister Omar Abdullah said this on twitter, “Mark my
words & save this tweet – long after Modi Govt. is a distant memory either Jammu and Kashmir
won't be part of India or Article 37- will still exist”.

Distinction between Article 370 and 35A 8

Article 35A: Permanent residence, special rights and privileges

Article 35A permits Jammu and Kashmir assembly to define permanent residents of the state. It
was enacted through the constitution (application to Jammu and Kashmir).

Let’s know more about special right

A) As per this article 35A, natives of Jammu and Kashmir have the right of own a real estate,
settle permanently, or avail or citizenship schemes.
B) It restricts organizations to hire non -J&K personnel to find employment in their field.
C) Any non-J&K residents cannot operate in any governmental sector.
D) Non- J&K resident can’t take admission in any of the government college or institution for
degree or get any form of government aid.
E) Article 35A was incorporated into the constitution in 1954 by the orders of the president

8
[EXPLAINER] J&K: Here’s the difference between Article 35A and 370; all you need to know, available at: :

https://www.timesnownews.com/india/article/jk-here-s-the-difference-
between-article-35a-and-370-you-all-need-to-know/463743 (Last Modified August 05,
2019)
 Rajendra Prasad on the advise of the Pandit Jawaharlal Nehru Cabinet.

Article 370: Special Independence

1) It is implemented in the Constitution on October 17, 1949, Article 370 excludes J&K from
the Indian Constitution (displaying Article 1 and Article 370 itself) and allows it to draft its
own constitution.
2) According to Constitution of India, Article gives a special status to Jammu and Kashmir
which is also temporary in nature.
3) If we refer the provisions of Article 238, which was dropped out from the Constitution In
1956 when Indian states were reorganized, it weren’t implemented to the state of Jammu and
Kashmir.
4) Article 370 has been drafted in Amendment of the Constitution section, in Part XXI, under
Temporary and Transitional Provisions.
5) The Indian Parliament cannot modify the borders of J&K.

ARTICLE 370 OF THE CONSTITUTION OF INDIA AND CONSTITUTION OF

JAMMU AND KASHMIR9

After India became independent on 15th august 1947, it fell upon the constituent assembly to take up
the tremendous task of drafting a constitution for the country. On 29 th august 1947 the constituent
assmebly appointed a drafting committee to prepare the draft of the constitution. The draft
constitution as settled by the drafting committee was introduced in the constituent assembly on 4 th
november, 1948. B.R Ambedkar was the chairman of the drafting committee. 10

Regarding the state of Jammu and Kashmir various difficulties arose, which the Government of
india had to consider carefully, Maharaja Hari Singh wanted that the accession of the state should
be in respect of three subjects : defence, foreign affairs and communications. The drafting
committee pointed out that undr the provisions of the Draft constitution all states in Part III would
accept List I, List II, List III, all provisions relating to fundamental rights and the provisions relating
to high courts and supreme court. However, with regard to the state of jammu and kashmir the
government of india decided that the accession of the state should continue on the existing basis

9
The Constitution oflndia- Eighth Edition- Page A-18,- M.P. Singh
10
Constitutional Law of India- Fourth Edition- Volume 1 -Page 155 -H. M. Seervai.
until the state could be brought at par with other states. And for this purpose a special provision was
made for the state of Jammu and Kashmir of india.

The ministry of states suggested for consideration of the Drafting Committee :-

1) Jammu and Kashmir state may be treated as a part of Indian territory and shown in states
specified in Part III of schedule I.
2) A special provision may be made in the constitution to the effect that until parliament
provides by law that all the provisions of the constitution applicable to the states specified in PartIII
will apply to this state, the power of parliament to make laws for the state will be limited to the
items specified in the schedule to the instrument of accession of this state to the dominion of india
or to the corresponding entries in List I of the new constitution.

3) Not only in the announcement of the Honourable Minister for states, but also in the address
of Lord Mountbatten to the Princes, it had been clear that accession on three subjects did not imply
any financial liability on the part of the states and that there was no intention either to encourage on
the internal autonomy or the sovereignity of the states. It was gainst these commitments that the
state ministry had to approach the rulers for the integration of their states. In the case of Sayec Vs.
Ameer Ruler Sadiq Mohammad Abbari Bhawalpur it has been held that the effect of the instrument
of accession was not to make any state a part of the dominion.

STATUS OF PERMANENT RESIDENTS OF KASHMIR11

KOSHURS- THE PEOPLE OF KSHMIR

The people of Jammu and Kashmir which is also known as koshurs, are also called as mulkis, state
subjects or permanent residents. They enjoy a special status within the indian union compared to the
residents of the other states. Also the most important point is that this special status acts as a legal
and social barrier between the people of the state of Jammu and Kashmir and the people of rest of
india. The special status of the permanent residents of Kashmir is one of the reasons because of
which the complete integration of Kashmir with India has not been possible and is one of the causes
for resentment in the minds of the rest of the indian population in general. Though this special status
was guaranteed to the people of the state due to various socio-political factors which is carried out
from the state's history, its existence some where contradicts the observation made by the supreme
court of india in indra sawhany's case, where a constitution bench of the Apex court observed and

11
Raghunathrao Ganapatrao V. Union of India - (1994) Supp(l) sec 191.
got relaxed and pleased that “india has one common citizenship and every citizen should feel that he
is indian first irrespective of any other basis”. A similar view has also been expressed by the
supreme court of india in raghunathrao ganapatrao v. Union of India where the supreme court was
observed that in a country like india with so many disruptive forces of regionalism, communalism
and linguism, the unity and integrity of india can be preserved by the spirit of brotherhood. India
has one common citizenship and every citizen should feel that he is indian first irrespective of any
other basis.

The division between the people of the state of jammu and kashmir and the rest of india is artificial
and since past from time immoral the state of jammu and kashmir been considered to be an integral
part of india. It has been said that the “country which lies to the south of the himalays and north to
the ocean is called bharat and the bhartiyas are people of this country.” According to this ancient
defination of 'Bharat' and the 'bhartiyas' there can be no doubt that the people of india and kashmir
are 'bhartiyas' and also there can not a single doubt that the people of india and kashmir are one and
the same and share a common ancestory. The princely states (of which kashmir is one)
geographically formed a part of india. In ancient times the territory of india stretched beyond the
indus valley and included parts of tibet in the north. Presently the state is wedged between india and
pakistan, which prior to partition in 1947 was also a part of india. Therefore it is clear thatboth
historically and geographically kashmir was and is a part of india nad the people of kashmir were
no douby bhartiyas and indians.

NEGETIVE IMPACT OF ARTICLE 370 ON THE RIGHTS OF THE PEOPLE

OF JAMMU AND KASHMIR 12

The special status enjoyed by the permanent residents of the state of Jammu and Kashmir has
caused several controveries. As what ever the law which is passed by the centre government will
prevails in whole india except jammu and kashmir and over the years centre government have
accepted the special status enjoyed by the centre government sometimes reluctantly and protest. But
at the same instance for various social and political reasons there has been no rash attempt to
abrogate this special status of the permanent residents. Indian government has been no rash attempt
to abrogate this special status of the permanent residents. Indian government has been honouring
both in letter and spirit this aspect of the constitution of jammu and kashmir. The main reason for
retaining this special status has been to protact the people of the state of jammu and kashmir for any

12
Constitutional Autonomy-A Case Study of J & K- page 37- Dr. K. K. Wadhwa.
 more further exploitation.

SOME OF THE IMPACTS

1) As the time passes the interest of the people starts hampering and compusions on various
political parties outside the state to appease their vote banks. 13
No thought was spared by the votaries of “retention of Article 370.

2) Article 370 has built emotional and psycoloical barriers between the people of kashmir and
the rest of india as also fostering a psycology of seperation. Existence of this statue is used by
pakistan and its proxies in the valley to mock at the very concept of india is being one from kashmir
to kanyakumari. Also the most important part is that it kept alive the two-nation theory.

3) The vested interest in kashmir have misused by many politicians, bureaucracy, businessman,
judiciary, etc because of Article 370 for their own nefarious purposes, by expoiting the poor and the
down-trodden people of the state. No financial legislation make rich accountable for their loot of the
state treasury.

4) The way land resources are cornered by rich and mighty people, causes huge losses to the
state. These vested interests have gained much financial assistance from india which they have used
to build separatist and secessionist lobbies with which they blackmail india.

5) One of the worst human tragedies the state faces is the denial of basic democratic and
citizenship rights to nearly 600,000 refugees from pakistan who entered the state at the time of
partition or as a result of wars between india and pakistan. After that these refugees have made the
state their home for the last over six decades. Neither they nor their children can get citizenship
rights in the state, and this is the result of Article 370. They can neither vote nor fight election also
they cannot get loans from the state nor seek admissions into various professional colleges of the
state.

6) Article 370 has also been misused by political oligarchs to hold power in every area by
preventing various democratic legislations from being applied to the state. eg.- Anti defection law,

13
Impact of Article 370 available at: http://www.indiandefencereview.com/spotlights/impact-of-article-370/ (Last
Modified Nov 20, 2019).
 which is a useful provision for preventing defections.

7) Article 370 has also been used to deny a fair share of economic pie to both ladakh and
jammu region. Violent gaiations that rocked Ladakh in july-september 1989 were the result of the
resentment felt by ladakhis at being treated unfairly by kashmiris muslims, who have a stranglehold
on political power in the state. It is ironoc that where as Rticle 370 provides all the political,
economic and cultral and other safeguards to kashmiris, the same provision is misused by kashmiris
to deny the same safguards to people of other regions of the state.

ABROGATION OF ARTICLE 370 – BY AMIT SHAH14

Union minister for home affairs, Shri Amit Shah, introduced two bills and two resolutions regarding
Jammu and Kashmir (J&K) today. These are as follows:-
1) constitution (application to jammu and kashmir) order, 2019 {ref. Article 370(1) of the
constitution of india}- issued by president of india to supersede the 1954 order related to Artcle 370.

2) Resolution for Repeal of Article 370 of the constitution of india {Ref. Article 370 (3)}.

3) Jammu and Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of the constitution of
india}.

4) Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019.

Our Union Home Minister, Amit Shah has announced a path breaking decision that government is
moving a resolution which would repeal the provisions under Article 370 of the constitution of
india, which granted special status to state of Jammu and Kashmir. 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. Also the constitution of india would get applicable in Jammu
and Kashmir, on par with other states/ UT of the country.

In addition to this Shah said that the bill that the government is bringing is historic. Article 370
prevented jammu and kashmir to merge with india. The politics of vote bank has looted the youth of
the state for over 70 yrs. Minister also termed the provisions of Article 370 as discriminatory on the
basis of gender, class, caste and place of origin. This provision was temporary in the first place and

14
 it has to go in the larger interest of the people of jammu and kashmir.

Under Artcle 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. He
added that post the repeal of Article 370, also open the door to private investment in jammu and
kashmir which would lead to increase job creation and further betterment of socio-economic
infrastructure in the state. He said that because of Artcile 370, democracy never took root in jammu
and kashmir, corruption flourished, widespread poverty took root and no socio-economic
infrastructure could come up. Also, 73rd and 74th amendments to the constitution could not be
applied to Jammu and Kashmir due to Article 370 also the important thing to notice that this article
impedes people from outside the state to do business there. Absence of economic competition have
prevented competition and development and corruption flourished.

He also said about the henious problem that is terrorism that the youth of jammu and kashmir has
been misguided to pursue jihad on pakistan's nefarious design. Thousands of civilians have died
because they had stated the policy of pakistan to support Article 370 and keep the youth away from
getting into the mainstream of development and brain wash them into jihad.

Daughters of the state who marries outside the state lose their rights to property in the state of
jammu and kashmir which is very discriminatory to the women and the children. SC and ST people
have been discriminated against and have been deprived of reservation to political offices.

After that at last our minister said that jammu and kashmir will become a true part of india once
article 370 will be removed. The path to solution to all the problems of kashmir goes throgh the
repealing of Article 370. This step will stand strong and would pass the test of legal scruitny. Article
370 was a temporary and transient provision.

Shri amit shah lso introduced the jammu and kashmir (reorganisation) Bill, 2019 making jammu
and kashmir a union territory with a legislative assembly along with union territory status to ladakh
without a legislative assembly. Further, the jammu and kashmir reservation (2 nd amendment) bill,
2019 to amend jammu and kashmir reservation act 2004 was also introduced. This bill seeks to
extend the 10% quota to economically weaker sections of society in jammu and kashmir in jobs and
educational institutions. Both the bills were passed by rajya sabha unanimously.
 THE CONSTITUTIONAL LEGITIMACY OF ABROGATING ARTICLE 370 15
while if we look at the polpular opinion of the nation is in favour of the abrogation of Article 370 in
kashmir, the constitutional legitimacy of the decision needs to be questioned. It was projected as a
fairly constitutional move by stating that the special status special status and priviledges available to
the people of kashmir for the last seven decades have not served their purpose and it is now time for
the kashmiris to enter into a new national pact for strengthening peace and local democracy in the
state. The battle for peace and local prosperity in kashmir will be won or lost in the minds and
hearts of the people of india.

WHAT WILL HAPPEN TO JAMMU AND KASHMIR NOW ?

1) After kashmir's special status is gone, people from anywhere in india will be able to buy
property and permanently settle in the state.
2) A seperate union territory will be created for jammu and kashmir with legislature, amit shah
had revealed this notification. “keeping in veiw the prevailing internal security situation, fuelled by
cross-border terrorism in the existing state of jammu and kashmir, a seperate union territory is being
created.
3) According to this recent notification the Ladakh region is also being given the status of a
union territory, without legislature. There has been long-pending demand of people of ladakh to
give it a union territory status to enable them to realise their aspiration.
4) After following the proposal of amit shah, home minister of india, president ram nath kovind
promulgated constitution (application to jammu and kashmir) order, 2019, stating that the
provisions of the indian constitution will now applicable to jammu and kashmir.
5) The constitution (application of jammu and kashmir) order, 2019 comes into force “at once”
and shall “supersede the constitution (application to jammu and kashmir) order 1954”.
6) A clause 4 has been added to article 367 which will introduced four changes.
7) The reference to the person for the time being recognised by the president on the
recommendation of the legislative assembly of the state as the sadr-e-riyasat of jammu and kashmir,

15
The Constitutional Legitimacy of Abrogating Article 370,
available at:
https://www.epw.in/journal/2019/38/commentary/constitutiona
l-legitimacy-abrogating-article-370.html (Last Modified: Sept 21, 2019).
 acting on the advice of the council of ministers of the state for the time being in office, shall be
constructed as references to the governor of jammu and kashmir.
8) Atlast the order further said that in the provision to clause (3) of article 370, the expression
“constituent assembly of the state referred to in clause (2) shall read “legislative assembly of the
state.
LANDMARK CASES ON ARTICLE 37016

1. Sampat Prakash v. State of J&K:

The main issue which was raised by the person who approaches a court for help was
based on the fact that Article 35(c) of Jammu and Kashmir Constitution as at first
introduced by the constitution (application to Jammu and Kashmir) order, 1954, had
given protection any law relating to serving to stop something bad before it happens
detention in Jammu and Kashmir against invalidity on the ground of violation of any of
the basic rights promised that something will definitely happen or that something will
definitely work as described by Part III of the Constitution for a period of five years
only.
After that this period was extended to ten years and later to fifteen years by the
Presidential Orders dated 1959 and 1964. The person who approaches a court for help
challenged these extensions on the ground that the orders making such changes could
not be validly passed by the President under Article 370(1). Article 370 could only have
been meant to remain effective until the Constitution of the state was framed and after
that is must be held to become ineffective that any change made by the President later to
the enforcement of the Constitution would be without the authority of law.
The above argument was rejected by the supreme court and held Article 370 should be
held to be continuing in force because the situation had existed when this article was
incorporated in the constitution had to an important extent changed, and the purpose of
introducing this article was to give power to the President to exercise his wisdom when
making decisions in applying Indian Constitution and a reference was also made that
Article 368 of the Constitution in its application to state of J&K under which a change to
the Constitution under Article 368 is of no result in the state of J&K unless applied by
the President under Article 370(1).

2. Mohd. Damnoo v. State of J&K:

The person who approaches a court for help challenged the something is truly what it
claims to be his detention under the J&K serving to stop something bad before it
happens Detention change Act, 1967, on the ground that the Act is invalid as it has not
been agreed to by the Sadar-i-Riyasat of the state. On November 16,1952 the President
had made an order substituting another explanation for the existing one in clause(1) of
Article 370, as “For the purpose of this article, the Government of the state means the
person for this time being recognised by the president on the recommendation of the
Law-based Assembly of the state as the Sadar-i-Riyasat of J&K, acting on the advise of
group of people who advise or govern of Minister of the state for the time being in
office”. According to the counsel for the person who approaches a court for help, neither
the State Assembly nor the President were able to do something well to damage the
functioning of the Sadar-i-Riyasat of the State unless the Constitution of India was
changed under Article 368 and 370(3) or a fresh voter Assembly was brought together to
update the Explanation. The above argument was not accepted by the supreme court and

16
Sampat Prakash vs State Of Jammu & Kashmir ( 1969 AIR 1153, 1969 SCR (3) 574)
 the court explained the following feature of Article 370(1) (b) and (d) is the need of the
agreement of the State Government. Article 370(1) (b) and (d) places no limitation on
the framing or change of the Constitution of J&K. Basically, It was pointed out that the
change in the name and the mode of the appointment of the Head of the state, the
agreeing with position in the state remains basically the same and the Governor is the
person to the Sadra-i-Riyasat and can validly exercise his powers as Head State.

LEGAL WORK BEHIND SCRAPPING OF ARTICLE 370 17

The law ministry, directed by Union Law Minister Ravi Shankar Prasad, has been working out the
legal ways of doing things of taking back the special status granted to Jammu and Kashmir before
the 2019 general elections.

But the “legal homework” had begun way back in 2014 with legal opinions being tried to get by the
government, people with direct knowledge of the matter. Sources added that the current Law
Secretary was constantly talked to by the prime minister’s office (PMO) for drafting the notices and
providing legal support over the last one month. The law secretary was also giving legal inputs to
the home ministry to make sure that there were no legal wrestles. Announcement was to be made a
night before, Prasad himself finalised the laws till Monday morning before leaving his
accommodation to have one final meeting with the home minister, sources added.
Being a part of the legal homework have been already done since 2014, more than two, but not a lot
of internal discussions were held to chalk out a map of roads to redrew the map of Jammu and
Kashmir. The Government stated that Article 370 which secures special status to the state is “only
lasting for a short time”. Explained research was done related to the “dissolution” of Article 370
from 1956 to 1994.

It was noticed that the Presential orders that has been issued are 47 which is between February 1956
and February 19, in 1994 different set of legal rules of the Indian Constitution related to Jammu &
Kashmir were came in existence. The government stated that 260 of the 395 Articles were made
related and 94 of the 97 Union List entries stand included within the law-based powers of the
parliament. A debate was held on that Article 35A is a part of the Indian Constitution by way of an
add on and as part of the 1954 order.

Making out a case to cancel Article 35A, some legal scholars had told the government that Article
35A is not genuine and also not caring about religion and wanting to keep religion out of
government and tells the difference between people who lawfully lives in a country, state, etc. those
who are permanent residents. It was promised that Article 35A is a direct cancellation of Article 14
which states all the things are equal before the law of the India Constitution.

Due to the issues of state of being unable to move, lack of investments in Jammu and Kashmir, lack
of development, underemployment due to low wages were raised during the internal discussions to
throw out Article 35A.

The legal obstacles in removing Article 370 were also co-ordinated as this cannot be added to the
end since it is a unique rule. They also discussed ways to present a forcing case before the
international community so that no resistance is faced at the worldwide level. The government was

17
Legal work behind scrapping of Article 370 began before Lok Sabha polls, available at:
//economictimes.indiatimes.com/articleshow/70561234.cms?from=mdr&utm_source=contentofinterest&utm_medium=tex
t&utm_campaign=cppst (Last Modified Aug 7, 2019).
 gave opinions about what could or should be done about a situation. To carry out at least a 2 year
series of actions to reach a goal to change the negative mindset of J&K residents about Article 370.

IS IT BROUGHT PEACE OR CONFLICT ? 18

Having in concern that Article 370 is “Temporary and Transitional” the Article 370 closed the doors
of economy in J&K which somewhere strengthens the powers of separatist forces and politicians in
Kashmir.
Following given are few issues and challenges faced by the J&K residents:-

2) Temporary and Transition Provision- It was planned that Article 370 were to be introduce
as temporary and transitional provision, but it is not abrogated yet. And also
there is no one to give explanation about this Article transitional nature.
3) Increases Separation Tendency- According to the Article published in Indian republic,
Kashmiri’s feels separated as part of India and often asks people coming from different
states to Kashmir, if they have you come from India. This reflects the fake concept of unity,
which is very best characteristic in India.
4) It impacts the economy of J&K- According to the proviso of Article 370 non-J&K
residents isn’t allowed to invest in Kashmir, they can’t invest in real estate or start their
start-up. Where whole India taking advantage of rights like right to move without
restrictions or barriers and invest in any business and in any part of India, but due to Article
370 Kashmiri’s facing barriers in these sectors.
5) Does not fulfil the criteria of Section 5 of the instrument of accession which says-
“The terms of this my instrument of accession shall not be varied by any amendment of
the Act or the Indian Independence Act, unless such amendments are accepted by me by
instrument supplement to this instrument”.

SUMMARY OF ARTICLE 370

1) Through 1927 and 1932 notificatios, Dogra ruler of the princely state of jammu and
kashmir, Maharaja Hari Singh made a law that defined state subjecta and their rights.

2) The law also regulated migrants to the state. Jammu and kashmir then joined india through
the instrument of accession signed by its ruler Hari Singh in October 1947.

3) After jammu and kashmir's accession, sheikh abdullah took over reins from the Dogra ruler.

18
Ethnic Conflict, Support from Pak & Article 370: Why Resolving J&K Crisis Needs Multi-

pronged Strategy, available at: https://www.news18.com/news/opinion/ethnic-conflict-pak-

support-article-370-why-resolving-jk-crisis-needs-multi-pronged-strategy-2351873.html (Last

Modified Oct 20, 2019).

4) In 1949, he negotiated jammu and kashmir's political relationship with new delhi, which led
to the inclusion of article 370 in the constitution.

5) Article 370 guarantees special status to jammu and kashmir, restricting union's legislative
powers over three areas : defence, foreign affairs and commuications.

6) However, under the 1952 delhi agreement between abdullah and nehru.

7) Several provisions of the constitution were extended to jammu and kashmir via presidential
order in 1954. Article 35A was also inserted then into the constitution.

8) Jammu and kashmir's separate constitution was framed in 1956. It retained maharaja's
defination of permanent residents of the state which means: all persons born or settled within the
state before 1911 or after having lawfully acquired immovable property resident in the state for not
less than 10 years or prior to that date.

9) All emigrants from jammu and kashmir, including those who migrate to Pakistan, are
considered state subjects. The descendants of emigrants are considered state subjects for two
generations.

10) Permanent resident law prohibits non-permanent residents from settling permanently in the
state, acquiring immovable property, government jobs, scholarships and aid.

11) However, the law was interpreted as discriminatory against the jammu and kashmir women.
It disqualified them from their state subject rights if they married non-permanent residents.

12) But, in a landmark judgement in october 2002, the jammu and kashmir high court held that
women married to non-permanent residents will not lose their rights. But the children of such
women won't have succession rights.
 CONCLUSION19

Article 370 of indian constitution has been a subject of debate since long time now. There was a
prize that was awarded to sheikh mohammad abdullah for integrating jammu and kashmir with
india and this award has proved to be a debate thanks to the irrationality of this law and its
incompatibility with political and legislative structure of india. India is a diverse nation closely knit
by the federal laws which provide uniform treatment to all regions and further promote the sense of
integrity amongst all regions.
However, jammu and kashmir today stands alienated from the great indian story due to the
existence of article 370. the constitutional history of jammu and kashmir is much more than simply
setting forth the outlines of the state government. And when it is explained vis-a-vis Article 370 of
the indian constitution, it assumes more color & significance.
In fact, people in kashmir live a life that is completely different from other indians as they don't
enjoy the same rights and safeguards that their fellow indians do. The major effect of this clause
falls on the secular character of indian union. Kashmir is a muslim dominated state however has
sizeable population of hindus and sikhs.
In the past, there have been numerous incidents of communal violence which led to migration of
hindus to other parts of the nation. Further, jammu and kashmir has been a hotbed for corruption
and automatic rule by the state governments thanks to the greater power they enjoy. The economic
prosperity of the people has also been affected as the state has limited revenue sources and the
major aid which comes from the union gvernment goes into law enforcement bodies. One would
only recommend for the abolition of the special status awarded to the state. But the issue is not
simple enough as any attempt to modify or delete the article would lead to problems that go beyond
political landscape.
But at the same time, the people of kashmir wouldn't be able to prosper until they are fully
integrated with the nation. But before attempting such amendments indian government needs to win
the faith of kashmiris who have been victims of the cross border politics of india and pakistan.

19
Kashmir: Why amendments to Article 370 may not withstand judicial

scrutiny, available at: https://www.business-standard.com/article/economy-policy/kashmir-

why-amendments-to-article-370-may-not-withstand-judicial-scrutiny-119080600557_1.html
(Last Modified Aug 6, 2019).