Article 370

Article 370 was a special article in the Constitution of India that gave the state of Jammu and Kashmir (J&K) a unique position. Most parts of the Indian Constitution did not apply to J&K automatically. They applied only when the President issued an order, and usually only with the agreement of the state government. J&K also had its own Constitution and its own flag. Since 2019, this special status no longer exists.

Why was it created?

In 1947, princely states had to decide whether to join India or Pakistan. On 26 October 1947, Maharaja Hari Singh, the ruler of J&K, signed the Instrument of Accession with India. Under this document, he gave the Indian Parliament power over only three subjects: defence, foreign affairs and communications. The situation in the state was unusual: there was a war, part of the state was under Pakistan's control, and the matter had gone to the United Nations.

So the Constitution makers wrote a special, flexible article for J&K instead of treating it like other states. Article 370 was drafted mainly by N. Gopalaswami Ayyangar.

Where was it in the Constitution?

Article 370 sat in Part XXI, whose title is "Temporary, Transitional and Special Provisions". Its own heading called it a "temporary provision". Only two articles applied to J&K on their own: Article 1 (India is a Union of States) and Article 370 itself.

How did it work?

Think of it as a door with a key. Other parts of the Constitution could enter J&K only through this door.

• Clause (1)(d): The President could apply other provisions of the Constitution to J&K by an order, with changes ("modifications") or exceptions. For matters in the Instrument of Accession, the President only had to consult the state government. For other matters, he needed its concurrence (agreement).
• Clause (2): Any concurrence given before the state's Constituent Assembly met had to be placed before that Assembly.
• Clause (3): The President could declare that Article 370 would stop working, but only on the recommendation of the Constituent Assembly of the State.

How did it change over time?

• Delhi Agreement, 1952: Talks between the Centre and the state leadership extended more subjects to J&K.
• Constitution (Application to Jammu and Kashmir) Order, 1954: This Presidential Order applied large parts of the Constitution to J&K. It also added Article 35A, which let the state legislature define "permanent residents" and give them special rights in jobs, land ownership and settlement.
• J&K Constitution: Adopted on 17 November 1956, it came into force on 26 January 1957. The state's Constituent Assembly then dissolved itself without recommending that Article 370 end.
• Over the next decades, many more Presidential Orders applied more and more of the Constitution to J&K. Critics called this "erosion" of autonomy; supporters called it gradual integration.

How was it ended in 2019?

The state had no Constituent Assembly any more, so clause (3) seemed impossible to use. The government used a two-step method:

• C.O. 272 (5 August 2019): This order replaced the 1954 order and applied the whole Constitution to J&K. It also changed Article 367 (the article that explains how to read words in the Constitution) so that "Constituent Assembly" in Article 370(3) would be read as "Legislative Assembly". J&K was under President's Rule, so Parliament acted in place of the state legislature and recommended the change.
• C.O. 273 (6 August 2019): Using the new reading, the President declared that all clauses of Article 370 would cease to operate, except clause (1) in an amended form. Article 35A also went.
• At the same time, Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, which split the state into two Union Territories.

What did the Supreme Court say?

In In Re: Article 370 of the Constitution (decided on 11 December 2023), a five-judge Constitution Bench headed by Chief Justice D.Y. Chandrachud upheld the ending of special status.

• Article 370 was a temporary provision, made because of war-time conditions and to help the state join fully over time.
• J&K did not keep any internal sovereignty after accession. It had special autonomy, not sovereignty. (Sovereignty means supreme, independent power.)
• Changing Article 367 to indirectly amend Article 370 was not a valid method. But the President could, by himself, apply all provisions of the Constitution to J&K under Article 370(1)(d). So the final result of C.O. 272 stood.
• C.O. 273 was valid. The President's power under clause (3) did not end when the Constituent Assembly dissolved.
• The Court upheld making Ladakh a separate Union Territory.
• It did not decide whether turning a whole state into a Union Territory is valid, because the Solicitor General told the Court that statehood would be restored. The Court directed that statehood be restored "at the earliest and as soon as possible".
• It ordered the Election Commission to hold Assembly elections by 30 September 2024.

Commonly confused concepts

• Article 370 vs Article 35A: Article 370 was the main door for applying the Constitution to J&K. Article 35A was added through the 1954 order and dealt only with the rights of permanent residents.
• Article 370 vs Article 371 (371A to 371J): Article 371 and its sub-articles give special provisions to states like Maharashtra, Gujarat, Nagaland, Mizoram and others (for example, protecting local customs or setting up development boards). These continue. They never gave a separate constitution.
• Special status vs statehood: Special status (Article 370) is about how much of the Constitution applies. Statehood is about whether the region is a state or a Union Territory. The current demand in the Assembly is for statehood.
• Autonomy vs sovereignty: Autonomy means freedom to run your own affairs inside a bigger country. Sovereignty means supreme, independent power. The Supreme Court held J&K had the first, not the second.

Issues, criticism and the way forward

• Supporters' view: Ending special status gave J&K the same laws as the rest of India (for example, reservation rules, Right to Education and anti-corruption laws) and completed integration.
• Critics' view: The change was made while the state had no elected government. Some argue this bypassed the consent of the people's representatives and weakened federalism.
• Open question: Whether Parliament can turn a full state into a Union Territory is still unanswered by the Supreme Court. This matters for all states, not just J&K.
• Healing: Justice S.K. Kaul, in his separate opinion, suggested a truth and reconciliation commission to look at human rights violations in the region since the 1980s.

Concepts to Know

• Princely state: A region ruled by a local king under British supremacy before 1947. There were more than 500 such states.
• Presidential Order (Constitution Order, C.O.): An order issued by the President. Under Article 370, it was the tool used to apply parts of the Constitution to J&K.
• Constituent Assembly: A body elected or chosen to write a constitution. J&K had its own, separate from India's.
• President's Rule: When a state's government cannot run as per the Constitution, the President takes over its administration under Article 356, and Parliament makes laws for the state.
• Constitution Bench: A Supreme Court bench of at least five judges that decides major questions about the meaning of the Constitution.