Article 370: Constitutional Obligation and Compulsion

Prof. (Dr.) Pradeep Kulshrestha

School of Law
Sharda University, Greater Noida
India

Abstract
Article 370 of the Indian Constitution deals with the special status given to the State of
Jammu and Kashmir. Under this Article State of Jammu and Kashmir enjoys considerable
autonomy which empowers it to have its own Constitution unlike other States of the Indian
Union. The whole controversy of insertion of Article 370 started at the time of independence.
Being a Muslim majority State with a Hindu ruler, Raja Hari Singh, the State was a bone of
contention between India and Pakistan. India upholding the ideals of secularism demanded
that the State be a part of it while Pakistan, being a Muslim State, staked claim at it. In the
British approved partition plan, there was no provision which stated that the Hindu Princely
State must accede to India and the Muslim States to Pakistan. Termed as the „umbilical cord‟
of the Indian Constitution as it is the only link between India and Jammu and Kashmir,
Article 370 is perhaps the most sensitive provision of the Constitution. The Parliament has
the power to amend the Constitution to change this provision. However, this Constitutional
Amendment shall be subject to a judicial review and shall be required to confirm to the
theory of basic structure of the Constitution1 as it would affect the relationship between the
State and the Centre.

Introduction
I cannot drink water
It is mingled with the blood of young men who have died up in the mountains.
I cannot look at the sky; It is no longer blue; but painted red.
I cannot listen to the roar of the gushing stream
It reminds me of a wailing mother next to the bullet-ridden body of her only son.
I cannot listen to the thunder of the clouds It reminds me of a bomb blast.

1
Kesavanand Bharti vs State of Kerala, AIR 1973 SC 1461
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 I feel the green of my garden has faded Perhaps it too mourns.
I feel the sparrow and cuckoo are silent Perhaps they too are sad.” - A Kashmir Poet

Article 370 of the Indian Constitution deals with the special status given to the State of
Jammu and Kashmir. Under this Article State of Jammu and Kashmir enjoys considerable
autonomy which empowers it to have its own Constitution unlike other States of the Indian
Union. The Constitution of Jammu and Kashmir interalia provides property rights only to the
permanent citizens of the Jammu and Kashmir. Article 370 has remained an enigma which
was originally intended to of temporary and transitional nature. The Constitutional validity of
Article 370 has been challenged in Supreme Court of India on many occasions but the Apex
Court has upheld its Constitutionality. Any demand for abolition of Article 370 is met by
counter demand for restoration of pre 1953 position by the political parties of the State.
Though Article 370 provided for the conditional merger of Jammu and Kashmir with India,
but has hindered its complete assimilation. Kashmir has drawn attention of the World powers
and once President Bill Clinton named Kashmir as Nuclear flashpoint between two Nuclear
powers.
Raja Hari Singh, the erstwhile ruler of Jammu and Kashmir refused to join either India or
Pakistan after partition and toyed with the idea of an independent State. In October 1947 on
being attacked from the Pakistan side by the Kabayali rebels backed by the Pakistani army
regulars, Maharaja negotiated conditional accession of the State of Jammu and Kashmir with
the Dominion of India. The turbulent situation resulted in incorporation of Article 370 in the
Indian Constitution. On attaining Independence, baring Hyderabad, Junagarh and Jammu and
Kashmir, all the princely states had chosen sides among the two countries. Despite Pakistan‟s
claim over it J and K owing to a political movement under the leadership of Sheikh Abdullah,
chose to be a part of India under special circumstances. Those special conditions which were
incorporated in Article 370 were that other than specific matters including defence,
communication and foreign policy, the Indian Parliament before implementing any laws in
the State would have to seek permission from J and K Assembly. In 1949 Nehru asked
Sheikh Abdullah, the Prime Minister of J and K to prepare a draft of the proposed Article,
then called Draft Article 306-A, in consultation with Dr. Ambedkar, the then Law Minister of
India. Abdullah wanted India to defend and help develop Kashmir and also contended that
the Kashmiris should have special rights. Dr. Ambedkar refused to draft the Article on these
grounds as he felt that it was a betrayal of the national interest and then the Article was
drafted by Gopalaswami Ayyenger. After being introduced it faced extensive opposition but
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with Pandit Nehru‟s backing, it was adopted and implemented. Sri N. Gopalaswami
Ayyangar when he moved in the Constituent Assembly clause 306A of the Bill, which now
corresponds 'with Article 370 of the Constitution. It was stated by him that conditions in
Kashmir were special and required special treatment. The special circumstances, to which
reference was made by him, were:--
(1) that there had been a war going on within the limits of Jammu and Kashmir State;
(2) that there was a cease-fire agreed to at the beginning of the year and that cease-fire was
still on;
(3) that the conditions in the State were still unusual and abnormal and had not settled down;
(4) that part of the State was still in the hands of rebels and enemies;
(5) that our country was entangled with the United Nations in regard to Jammu and Kashmir
and it was not possible to say when we would be free from this entanglement;
(6) that the Government of India had committed themselves to the people of Kashmir in
certain respects which commitments included an undertaking that an opportunity be given to
the people of the State to decide for themselves whether they would remain with the Republic
or wish to go out of it; and
(7) that the will of the people expressed through the Instrument of a Constituent Assembly
would determine the Constitution of the State as well as the sphere of Union Jurisdiction over
the State.
Because of the undertaking given by the Government of India that the people of Jammu and
Kashmir could frame their own constitution and also that it would not force the State to
accept the Constitution of India, J and K decided to have its own separate State Constitution.2
While Indian Constitution was to become applicable to all constituent units of the Union, the
Indian constituent Assembly was compelled to make a special provision to cover particular
and exceptional case of J and K. Thus, Article 370 was sown out of the draft Article 306-A.3
I. Article 370 and the Indian Constitution
“The dusk here does not arrive on the shoulders of the golden sunsets anymore, but on the
heels of the long encroaching shadows of untraceable trees in the distance, gloomy parallel
patterns that cascade over the undulating landscape of unevenly dispersed corpses and other
things.” -Mirza Waheed

2
Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and vol. 19 pp. 295-6
3
Sardar Patel, the then Minister of States in India, declared in the Constituent Assembly, “In view of the special
problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the
continuance of the State with the Union on the existing basis.” [Constituent Assembly Debates (India), Vol. X,
No. 5]
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Article 370 which falls under the Indian Constitution‟s Part XXI called „Temporary,
Transitional and Special4 Provisions‟ read as under: -
1. Notwithstanding anything in this Constitution:
a. the provisions of article 238 shall not apply in relation to the State of Jammu
and Kashmir,
b. the power of Parliament to make laws for the said State shall be limited to;
i. those matters in the Union List and the Concurrent List which, in
consultation with the Government of the State, are declared by the
President to correspond to matters specified in the Instrument of
Accession governing the accession of the State to the Dominion of
India as the matters with respect to which the Dominion Legislature
may make laws for that State; and
ii. such other matters in the said Lists, as, with the concurrence of the
Government of the State, the President may by order specify.
Explanation—For the purpose of this article, the Government of the
State means the person for the time being recognised by the President
as the Maharaja of Jammu and Kashmir acting on the advice of the
Council of Ministers for the time being in office under the Maharaja’s
Proclamation dated the fifth day of March, 1948;
c. the provisions of article 1 and of this article shall apply in relation to this
State;
d. such of the other provisions of this Constitution shall apply in relation to that
State subject to such exceptions and modifications as the President may by
order specify
i. Provided that no such order which relates to the matters specified in
the Instrument of Accession of the State referred to in paragraph (i) of
sub-clause (b) shall be issued except in consultation with the
Government of the State:
ii. Provided further that no such order which relates to matters other than
those referred to in the last preceding proviso shall be issued except
with the concurrence of the Government.
2. If the concurrence of the Government of the State referred to in paragraph (ii) of sub-
clause (b) of clause (1) or in second proviso to sub-clause (d) of that clause be given
before the Constituent Assembly for the purpose of framing the Constitution of the

4
The term Special provisions inserted by the 13th Amendment 1962
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 State is convened, it shall be placed before such Assembly for such decision as it may
take thereon.
3. Notwithstanding anything in the foregoing provisions of the article, the President may
by public notification, declare that this article shall cease to be operative or shall be
operative only with such exceptions and modifications and from such date as he may
notify: Provided that the recommendation of the Constituent Assembly of the State
referred to in clause (2) shall be necessary before the President issues such a
notification.
4. In exercise of the powers conferred by this article the President, on the
recommendation of the Constituent Assembly of the State of Jammu and Kashmir,
declared that, as from the 17th day of November, 1952, the said art. 370 shall be
operative with the modification that for the explanation in cl. (1) thereof the following
Explanation is substituted namely:
Explanation—For the purpose of this Article, the Government of the State means the
person for the time being recognised by the President on the recommendation of the
Legislative Assembly of the State as the *Sadar-I-Riyasat of Jammu and Kashmir,
acting on the advice of Council of Ministers of the State for the time being in office.
Article 370 from its very inception has continued under „temporary status‟. According to the
speech by Dr. Shyama Prasad Mookerjee at Kanpur(29th December 1952)5, Gopalaswami
Ayyangar had made a statement in the Constituent Assembly that with the intention of
keeping the door open for the day when J and K would merge with India and fully accept the
constitution of India, he had categorized Article 370 as a „Temporary‟ provision. On 27th
November 1963, Pandit Nehru confirmed on the floor of the Parliament his earlier made
statement: “Samvidhan ki dhara 370 ghiste ghiste ghis jayegi.” (Article 370 of the
Constitution would disappear by being eroded progressively.) Till date that hope of Nehru
hasn‟t been fulfilled but instead Article 370 has become permanently „temporary‟.6
II. Article 370: Constitutional Obligation and Compulsion
Article 370 assured the State of Jammu and Kashmir all the benefits of independence without
sacrificing the advantages of being a part of the larger Indian federation. The meticulousness
observed in preserving the autonomy of Jammu and Kashmir is shown in the use of the words
„consultation‟ and „concurrence‟ in the Article. The Constituent Assembly of Jammu and
Kashmir drafted a constitution for the State whose preamble states that “the People of the
State of Jammu and Kashmir, having solemnly resolved, in pursuance of the Accession of the

5
Kashmir Sentinel, August 2000
6
Arvind Lavakare; „The Truth about Article 370’; 2005; p-24
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State to India” had given themselves that Constitution the purpose of which was to further
define the existing relationship of the State with the Indian Union. 7In the Constitution of
Jammu and Kashmir, the Constitution of India has been defined as” the Constitution of India
as applicable in relation to the State.” This implies that such provisions of the Constitution as
would be made applicable to Jammu and Kashmir by an order issued by the President under
Article 370 of the Constitution would constitute the Indian Constitution so far as Jammu and
Kashmir is concerned.8
The Constitutional validity of Article 370 was challenged in Sampat Prakash vs State of
Jammu and Kashmir and Another9. The main contention of the petitioner was based on the
fact that Article 35(c) of the Jammu and Kashmir Constitution as initially introduced by the
Constitution (Application to Jammu and Kashmir) Order, 1954 had given protection to any
law relating to preventive detention in Jammu and Kashmir against invalidity on the ground
of infringement of any one of the fundamental rights guaranteed by Part III of the
Constitution for a period of five years only. This period of five years was extended initially to
ten years and later to fifteen years by the Presidential Orders of 1959 and 1964 respectively.
These extensions were questioned by the petitioner on the ground that orders making such
modifications could not be validly passed by the President under Article 370(1). It was
submitted that Article 370 could only have been intended to remain effective until the
Constitution of the State was framed, the Constitution of the State came into force on 26th
January, 1956 and, therefore, the two Orders of 1959 and 1964 passed by the President in
purported exercise of the power under Art. 370 were void and thereafter it must be held to
become ineffective with the result that any modification made by the President subsequent to
the enforcement of the State Constitution would be without the authority of law. The
Supreme Court rejected this argument, while placing reliance on the clause (3) of Article 370,
which lays down that “Notwithstanding anything in the foregoing provisions of the article,
the President may, by public notification, declare that this Article shall cease to be operative
or shall be operative only with such exceptions and modifications and from such date as he
may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in
clause (2) shall be necessary before the President issues such a notification.
Supreme Court held that there were, however, much stronger reasons for holding that the
provisions of this article continued in force and remained effective even after the Constituent
Assembly of the State had passed the Constitution of the State. The most important provision
7
Economic and Political Weekly, April 28, 1990
8
supra
9
AIR 1970 SC 1118
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in this connection is that contained in clause (3) of the article which lays down that this
article shall cease to be operative or shall be operative only with such exceptions and
modifications and from, such date as the President may specify by public notification,
provided that the recommendation of the Constituent Assembly of the State referred to in
clause (2) shall be necessary before the President issues such a notification.
This clause clearly envisages that the article will continue to be operative and can cease to be
operative only if, on the recommendation of the Constituent Assembly of the State, the
President makes a direction to that effect. In fact, no such recommendation was made by the
Constituent Assembly of the State, nor was any Order made by the President declaring that
the article shall cease to be operative. On the contrary, it appears that the Constituent
Assembly of the State made a recommendation that the article should be operative.
III. Special Status of Jammu and Kashmir: Constitution of Jammu and
Kashmir
Since State of Jammu and Kashmir presents a variation of the federal structure in which the
Indian States were welded, the dissection of the protected position of Jammu and Kashmir in
the Indian federal structure, as a sub-national personality, uncovers much and can serve as a
marker for any revaluation of the federal relations the Constitution of India epitomizes.
Sometimes special sub- nation identity given to Jammu and Kashmir raises some genuine
questions which had no answers.10
Clause 7 of the Instrument of Accession itself prevented the state to follow any future laws of
India or any future Constitution of India.11 The Constituent Assembly of the State adopted
and enacted the Constitution of Jammu and Kashmir on the Seventeenth Day of November,
1956 that came into force on 26th January 1957 duly approved the Accession in terms of
Instrument of Accession in unequivocal constitutional language in the Preamble integration
of the State of Jammu and Kashmir to the Indian Union, viz., “in pursuance of the Accession
of this State to India which took place on the Twenty-Sixth day of October, 1947, to further
define the existing relationship of the State with the Union of India as an integral part
thereof.”12 The Section 3 of the Constitution of Jammu and Kashmir states, “The State of
Jammu and Kashmir is and shall be an integral part of the Union of India.” The territory of
the State shall comprise all the territories which on the Fifteenth Day of August 1947 were
under the sovereignty of the Ruler of the State.13 Section 147 empowers the State legislature
to amend the Constitution of the State except the amendment of Section 3, 4, 5, 147 or the

10
www.lawctopus.com/academike/article-370-india-constitution-road
11
Supra, Note 18
12
www.dailyexcelsior.com/article-370-vis-a-vis-JK-state, browsed on 28th Feb, 2015
13
Section 4, Constitution of State of Jammu and Kashmir.
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provisions of the Constitution of India as applicable in relation to the State. No reference with
regard to Article 370 of the Indian Constitution is made in the Constitution of Jammu and
Kashmir.
IV. Article 370: The Effects and Exemptions
The three important components of Article 370 are viz., “in consultation with the government
of the State”, “with the concurrence of the Government of the State”, and “the
recommendation of the Constituent Assembly of the State shall be necessary”. Even though
included as the 15th State in the First Schedule, the Constitutional provisions that are
applicable to other states are not applicable to Jammu and Kashmir. The State of Jammu and
Kashmir was permitted to have its own flag14, its own Constitution, known as „The
Constitution of Jammu and Kashmir” and its own Anthem15.The content of Article 370
makes Parliamentary legislation on Jammu and Kashmir depending either on the consultation
or concurrence.16 This phenomenon of certain laws of the Indian Parliament not being
applicable at all or applicable only in part to the state is extraordinary. 17Some of the
Parliamentary laws that are not applicable to Jammu and Kashmir are as following-
 Indian Penal Code, 186018
 The Prevention of Corruption Act, 1988
 The Religious Institutions(Prevention of Misuse) Act, 198819
 The Delhi Special Police Establishment Act, 194620
 The Protection of Human Rights Act, 199321
 The Representation of the People Act, 1950.22
Certain constitutional provisions are also exempted from being applicable to Jammu and
Kashmir. They are:-
 Article 31C23

14
Jawaharlal Nehru in Delhi Agreement of 1952
15
Called as „QUAMI TARANA‟, The Daily Excelsior’, June 24, 2002
16
http://lawmantra.co.in/jammu-kashmir-the-conflict-of-article-370
17
In the USA in contrast, each of the 50 constituent States has its own Constitution, but every Federal law is
applicable to all the 50 States by virtue of Article VI of Part IV of the USA Constitution.
18
Jammu and Kashmir has The Ranbeer Penal Code.
19
This law prohibits religious institutions from allowing their premises for the promotion of political activity
and for storing of arms and ammunition.
20
The legal powers of investigation of Central Bureau of Investigation (CBI) are derived from this Act. The CBI
is today the country‟s foremost criminal investigation agency. CBI is entry number 8 in the Union List but this
entry is, by a Constitution order under Article 370, excluded from Parliament‟s purview in respect of Jammu
and Kashmir.
21
It does not extend to Jammu and Kashmir in respect of subjects under List II of Seventh Schedule.
22
Jammu and Kashmir State has its own “The People‟s Representation Act, 1957” and “The Representation of
People (Conduct of Elections and Election Petitions) Rules, 1957.
23
Prohibits challenge on certain grounds to laws giving effect to Directive Principles of State Policy set out in
Part IV of the Constitution of India.
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  Article 36 to 5124
 Article 51A25
 Article 134A26
 Article 153 to 21727
 Article 36028
The Union Government cannot apply even the Indian Penal Code, 1860 to the State of
Jammu and Kashmir although the State Constitution declares itself to be integral part of
India. Non-applicability of Indian Penal Code to the State of Jammu and Kashmir suggests
that the national interests have dwarfed in India, playing second fiddle to the vote bank
politics. Consequently a feeling has swept Jammu and Kashmir that its government and its
people are privileged. Successive Central Governments have tolerated this notion to appease
communal vote bank. Dislike of this elitist stance of Kashmir valley has often come from its
Jammu and Ladakh regions.29 In 1976, the Union Parliament by the 42nd Amendment added
the word „secular‟ to the Preamble of the Constitution which is meant to be omitted in respect
of Jammu and Kashmir. The word „Secular‟ which forms the integral part of the basic
structure of the constitutional framework is thus not applicable for the State of Jammu and
Kashmir.
The power given to the Parliament under Article 3 to increase or decrease the area of any
state or to change the name of any State also has a limited scope as it has been further
provided in the Article that no bill shall be introduced for increasing or diminishing the area
of Jammu and Kashmir without the consent of the State Legislature.
Another instance of discrimination in the right to vote has resulted in the most unusual
phenomenon that Indian citizens in Jammu and Kashmir are eligible to vote for the Lok
Sabha elections but not for the state assembly polls as they are not Permanent Citizens under
the State Constitution and State laws.

24
These contain directive principles which need to be applied in making laws. One such directive is to secure a
uniform civil code throughout the territory of India.
25
Lays down 11 fundamental duties of every citizen of India.
26
Empowers the High Courts to give certificate for appeal to the Supreme Court.
27
These constitute Chapters II, III and IV of Part VI titled „The States‟. The provisions lay down procedures,
rules, authority etc. relating to the Governor, the Council of Ministers, the State Advocate General, High Courts,
and all aspects of State Legislature.
28
Empowers the President of India to make a Proclamation of Financial Emergency if, in his opinion, the
financial stability or credit of India or any part thereof is threatened.
29
These two regions are big in size and have their own culture. But they are small in clout, and have been
dominated all these years by those in the Kashmir Valley who, led by Sheikh Abdullah first, have ruled the State
from the time it legally became a part of India. That is why organised groups in Jammu have long wanted the
district to be a separate State of India52 without the protective status of Article 370 and Ladakh has similarly
wanted Union Territory status for itself.53 Even the 3,50,000 or so Kashmiri Pandits who were hounded out
from the Valley in 1989-90 want a distinct geographical entity for their ethnic community under the aegis of the
Indian Union but without Article 370.
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Proclamation of emergency under Article 352 will have effect if it is made at the request or
with the concurrence of the Government of State. An amendment made to the constitution
can apply to the State of Jammu and Kashmir only with the concurrence of State Government
and when an order under Article 370 is issued by the President.
Along with Article 35A of the Indian Constitution, it allows the State to prefer the Jammu
and Kashmir "citizens" for:
 Employment under the State Government;
 Acquisition of immovable property in the State;
 Settlement in the State;
 Right to scholarships and such other forms of aid as State Government may provide.
In Puranlal Lakhanpal v. Union of India30 the Supreme Court observed, “In the context of
the Constitution we must give the widest effect to the meaning of the word „modification‟
used in Article 370(1) and in that sense it includes „amendment‟. There is no reason to limit
the word „modification‟ as used in Article 370(1) only to such modifications as do not make
any “radical transformation”.
Prof. M.P. Jain observes,“ The two characteristic features of this special relationship between
India and Jammu and Kashmir are: (1) The State has much greater measure of autonomy and
power than enjoyed by the other States and (2) Centre‟s jurisdiction within the State is more
limited than what it has with respect to other States.31
V. Impact of Article 370 on Economic and Social Life
Termed as the „umbilical cord‟ of the Indian Constitution as it is the only link between India
and Jammu and Kashmir, Article 370 is perhaps the most sensitive provision of the
Constitution. The Parliament of India like the Parliament of other democratic nations is the
supreme authority to make and amend the laws of the land but Article 370 has given birth to a
sense of dual Supreme authorities and State Legislature having overriding powers over that of
the Union Parliament. Except for Defense, External Affairs and Finance and Communication,
the consent of State Legislature is needed to make the laws on any other subject. Though this
restriction can be revoked by the President but it can only be done with the consent of the
State Legislature of Jammu and Kashmir. These limited powers result in non-applicability of
laws enacted by the Parliament on the State of Jammu and Kashmir.
Further the Union of India has no right to suspend the constitution of Jammu and Kashmir.
The Union of India lacks the power to make proclamation on the grounds of internal
disturbance or any anticipated threat. Such proclamations can be made with due consideration

30
AIR 1961 SC 1519, 1521: (1962) 1 SCR 688.
31
M. P. Jain; Indian Constitutional Law, Fourth Edition Reprint, 2002, p.435.
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and consent by the Government of Jammu and Kashmir. Directive Principles of State Policy
( Part IV) and Fundamental Duties (Part IV A) are also not applicable on the state of Jammu
and Kashmir.
The Union Government has been more than liberal while providing financial assistance to
Jammu and Kashmir and as a result of the massive financial assistance from the Union
Government has tried its best to promote the economy of Jammu and Kashmir.32Despite
being a rich source of numerous natural and human resources like water, wind, soil, forest,
tourism, Jammu and Kashmir is not more than a beggar state. As no investor wants to invest
his money in a continued state of threat and dual governmental complexities, there is hardly
any big industry in Jammu and Kashmir which could generate employment for its people.
The backbone of Jammu and Kashmir‟s income i.e. tourism, is also declining due to threat of
security. It is also said that unemployment in Jammu and Kashmir has promoted militancy.
After completing education and sitting idle for a long time, the poor youth with limited
resources, gets lured by a few thousand of rupees for taking part in anti-national activities.
VI. Shimla Agreement of 2ndJuly, 1972
The unique significance of Shimla Agreement of 2nd July 1972 is that it is an agreement on
Bilateral Relations between India and Pakistan to resolve their outstanding differences
bilaterally without the interference of any third party as mediatory functionary. Besides this
agreement has international sanctity since its one copy was registered with the United
Nations repository; this agreement was ratified /approved by the Parliament of India under
the provisions of the Constitution of India since International treaty or agreement has to be
vetted by the Parliament of India; Pakistan‟s legislative body also followed it in the same
vein. The Shimla Agreement constitutes an international treaty between India and Pakistan,
and unequivocally supersedes all the previous UN Security Council Resolutions of 17th
January 1948, 20th January 1948, 21st April 1948 as well as UNCIP Resolutions 13th August
1948, 5th January 1949, and Tashkent Declaration of 10th January 1966. Though the then
Prime Minister of Pakistan, Zulfiqar Ali Bhutto, promised the then Prime Minister of India,
Mrs. Indira Gandhi, that his country would accept the Line of Control (LOC) in the State of
Jammu Kashmir as the de facto border and would try not try to destabilise it, but this promise
was not formally entered in the agreement because Bhutto said that it would cause domestic
problems for him at this juncture. As such, Mrs. Gandhi magnanimously accepted his

32
Arun Shourie who said in an interview that „the per capita Central assistance to Kashmir is 14 times that to
Bihar, it is 11 times that to Tamil Nadu, it is 6 times that to even a beleaguered State like Assam. [The Times of
India, Mumbai, Edit page, 8-7-2000]
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promise and did not formalise that part of the agreement. But Pakistan, as usual with its
background characteristics, as later events were to prove, never kept its part of the promise.
The Shimla Agreement, at the outset, underlined the objectives of the agreement sought to be
achieved by reaffirming their resolve that the two countries put an end to the conflict and
confrontation that have hitherto marred their relations and work for the promotion of a
friendly and harmonious relationship and the establishment of durable peace in the sub-
continent, so that both countries may henceforth devote their resources and energies to the
pressing task of advancing the welfare of their peoples. In order to achieve this objective, the
Governments of India and Pakistan have inter alia agreed:
The principles and purposes of the Charter of the United Nations shall govern the relations
between the countries;
The two countries have resolved to settle their differences by peaceful means through
bilateral negotiations or by any other peaceful means mutually agreed upon between them.
Pending the final settlement of any problems between the two countries, neither side shall
unilaterally alter the situation nor shall both prevent the organisation, assistance or
encouragement of any acts detrimental to the maintenance of peaceful and harmonious
relations;
The pre-requisite for reconciliation, good-neighborliness and durable peace between them is a
commitment by both countries to peaceful co-existence, respect for each other‟s internal
affairs, on the basis of equality and mutual benefit;
The Shimla Agreement of 2nd July 1972 is an international treaty which was ratified by India
and Pakistan under their respective constitutional procedures and duly recognised by United
Nations unequivocally and this is noteworthy that it supersedes all the previous UN Security
Council Resolutions whether it is of 17th January 1948 or 20th January 1948, or 21st April
1948, or UNCIP Resolutions of 13th August 1948, or 5th January 1949, or of The Tashkent
Declaration of 10th January 1966. Conclusively, it may be submitted that the first Pakistani
aggression over the Indian State of Jammu and Kashmir ended with ceasefire agreement
concluded between India and Pakistan in 1949. Pakistan for the second time again intruded
the State of Jammu and Kashmir by an act of aggression to satisfy its political greed over
Jammu and Kashmir issue, which ended in the Tashkent Declaration of 10th January 1966.
From this vital resolve it discerns that Tashkent Declaration did not make any reference to
the UN Security „Council and UNCIP resolutions and as such those resolutions came to
naught and lost their utility and relevance from January 1966; it also discerns that from
January I966 no matter remained pending in the UN Security Council relating to the State of
Jammu and Kashmir; it also discerns that from January 1966 both the Countries India and
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Pakistan have had to resolve their disputes through peaceful means conducive to UN Charter.
The Shimla Agreement constitutes an international treaty between India and Pakistan, and
unequivocally supersedes all the previous UN Security Council and UNCIP Resolutions.
Pakistan has thus still failed to realize that no useful purpose can be served by clamouring
for Kashmir issue or Jammu Kashmir people‟s self-determination in the form of plebiscite to
determine accession issue, which according to all canons of law, constitutional law and
international, finally stand resolved through democratic processes under the Constitution of
India (Article 1 read with Schedules I and IV), Jammu and Kashmir Constitution (Sections 3
and 5 have these terms: The State of Jammu Kashmir is and shall be an integral part of the
Union of India. The executive and legislative power of the State extends to all matters except
those with respect to which Parliament has power to make laws for the State under the
provisions of the Constitution of India). Finally the issue of accession stands resolved which
makes Jammu and Kashmir an integral and immutable part of Union of India because the
Indian Independence Act did not envisage conditional accession; the Government of India
had no constitutional power to enter into an agreement with Pakistan to reopen and re-decide
the question of accession of Jammu Kashmir to India; the Indian Independence Act did not
give power to Pakistan to clamour for the redetermination or reopening the question of
accession once the ruler of the State finally executed its right of accession to India; the
bargain made in the UN Security Council and the UNCIP allowing plebiscite is ultra vires the
UN Charter as Security Council is not a tribunal or court where bargains made between two
Sovereign States on political considerations can be recorded and enforced; the bargain made
in the UN Security Council and UNCIP on plebiscite is also ultra vires and incompatible with
the Constitution of India as neither the Constitution of India nor the Constitution of Jammu
and Kashmir does enjoin any provision with regard to plebiscite or referendum or wish of the
people or self- determination; Instrument of Accession under the Acts of 1935 and 1947 had
ceased to be of any relevance and utility anymore and those as good or worse as dead wood
since the Acts of 1935 and 1947 had been deleted from the statutory books of India under the
constitutional language of Article 395 of the Constitution of India. The Shimla Agreement of
1972, the living international treaty, encapsulates the resolve of any outstanding differences
between India and Pakistan bilaterally through direct bi-lateral negotiations. Same was also
the spirit and message of UN Security Council resolution of 20th September 1965 which was
the last UNSC resolution over Jammu Kashmir. Pakistan is still indulging in proxy war
activities of varied dimensions and contours including training to militants, terrorists,
secessionists in the training camps on her soil or in POK against India. Though UN Security
Council and UNCIP and Tashkent resolutions relating to Jammu and Kashmir have outlived
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their utility and relevance in the present scenario, but India has to fight back strategically
intellectually, diplomatically, politically and forcefully with obstinate and obsessed Pakistan
when India‟s borders enjoin Pakistan, Bangladesh, Sri Lanka, Nepal, China, Afghanistan and
Russia.
VII. Abrogation of Article 370
“You wish India should protect your borders, she should build roads in your area, she should
supply you food grains, and Kashmir should get equal status as India. But Government of
India should have only limited powers and Indian people should have no rights in Kashmir.
To give consent to this proposal, would be a treacherous thing against the interests of India
and I, as the Law Minister of India, will never do it.”
-Babasaheb Ambedkar to Sheikh Abdullah
Part VI of the Constitution of India deals with „The States‟ and the very first Article (i.e. Art.
152) of this part reads as follows : "In this part, unless the context otherwise requires the
expression, 'State' does not include the State of Jammu and Kashmir."33
Article 370 can be repealed only if a new Constituent Assembly of Jammu and Kashmir is
convened and is willing to recommend its revocation. In other words, on the recommendation
of the Constituent Assembly of the State, the President may by public notification, declare
that this Article shall cease to be operative but only on the recommendation of the
Constituent Assembly of the State. The power of the Parliament to amend the Constitution to
abrogate Article 370 is subject to judicial review which may find that this clause is a basic
feature of the relationship between the State and the Center.
Whether Article 370 should be abrogated or not is a debatable question. The argument that
favours its abrogation is that it was a temporary provision which was subsequently required
to be done away with in a few years. The argument by those who are against the abrogation is
that if Article 370 is amended or removed , a demand for plebiscite would be more lethal as it
was required to hold a referendum within 5 years from the date of Accession. There are other
innumerable views also which are in favour and against the abrogation of Article 370. The
argument in favour of the retention of Article 370 is that the demand for abrogation is
indicative of a complete misunderstanding of Indian federalism and various other States too
have been provided the special status under the Indian Constitution and also there is Fifth and
Sixth Schedule for the Tribal and North Eastern States. If Article 370 is revoked then these
provisions also have to be revoked in time to come. In that case will the Centre be able to
protect the rights of those who have neither sufficient representation nor adequate

33
Bodh Raj Sharma, The Special position of Jammu and Kashmir in the Indian Constitution, The Indian Journal
of Political Science, Vol. 19, No.3 (July-September 1958) Page no. 282.
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opportunities for progress? These special provisions provide protections to the most
marginalized and neglected communities in India. Will abrogation of the special provisions
not result in descent into a similar undemocratic structure which our founding fathers
opposed and fought against?
Conclusion
Article 370 is a special constitutional provision providing for the integration of the State of
Jammu and Kashmir with the Dominion of India and has been a proverbial bridge as well
hindrance between Indian Union and State of Jammu and Kashmir obstructing the complete
integration of the State of Jammu and Kashmir with the rest of India. The accession of
Jammu and Kashmir with to the Dominion of India was conditional and Article 370 manifests
these conditions. The State of Jammu and Kashmir is constitutionally an integral part of the
Union of India albeit with some proviso. The transitional integration of State of Jammu and
Kashmir with the rest of India is the result of indecisiveness of Maharaja Hari Singh, the
erstwhile ruler of the State and diplomatic blunders of the Union Government.
Article 370 provided for a Constitutional framework where there were 'In One Country, Two
Constitutions; In One Country Two Flags; In One Country, Two Prime Ministers‟, and this
arrangement continued up to the year 1966. According to the Article 370, the power of
Parliament to make laws for the State of Jammu and Kashmir is limited to those matters in
the Union list and the Concurrent list which in consultation with the Government of State are
declared by the President to correspond to matters specified in the Instrument of Accession
governing the accession of the State to the Dominion of India as the matters with respect to
which the Dominion Legislature may make laws for that State. This constitutional
arrangement has provided for autonomy to State of Jammu and Kashmir which other States
of the Union of India do not enjoy. Under this autonomy, the State Legislature enacts laws
which do not conform to the norms of a progressive nation and are unconstitutional.
In democracy, people should have ways and means to exercise their legitimate political rights
to fulfil their aspirations and to raise the standard of living and denial of these rights for long
leads to the feeling of alienation. The political dispensation of the State of Jammu and
Kashmir has utterly failed to provide employment to the youth and basic amenities to the
people of Jammu and Kashmir to lead a dignified life. The political games necessarily entails
working up of sentiments of the masses and demand of autonomy and pre-1953 position and
has so far paid the rich political dividends to the political parties of the State of Jammu and
Kashmir. The demand for greater autonomy with the ulterior motives by the main stream
political parties of the valley led to the Pakistan sponsored armed insurgency in Kashmir. The
insurgency resulted in killing of thousands of people and the brave armed forces personnel
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who laid down their life defending the nation. In late 1980s, ethnic cleansing of Kashmir was
undertaken and Pundits were asked to leave the valley.
The Jammu and Kashmir receives 90 per cent of financial assistance in the shape of grants
and 10 per cent assistance as loans. The Union Government gives financial assistance to most
other States in the shape of 30 per cent grants and 70 per cent loans. If Pre-1953 position as
being demanded by the pro-autonomy groups in the valley is restored and only defence,
foreign affairs, communication and finance are retained by the Union Parliament, it is would
be difficult for the State of Jammu and Kashmir to generate enough funds. The continuation
of Article 370 has evoked sharp reactions from nationalist political parties and other groups
and a closer scrutiny of Article 370 and the objectives achieved by this constitutional
framework provides not so encouraging findings. The Article 370 has had a limited
temporary and transitional role, it is need of the hour for the main stream political parties to
generate public opinion conductive for repealing Article 370 that would bring investment in
to valley and uplift the standard of living and the security apparatus can also be brought to the
minimum required level, essential to maintain law and order in this sensitive border state.
Article 370 itself is gender neutral, but the definition of Permanent Residents in the State
Constitution based on notifications issued in April 1927 and June 1932 during the
Maharajah‟s rule was considered to be discriminatory.34 The 1920 notification included an
explanatory note which said: “The wife or a widow of the State Subject….shall require the
status of her husband as State Subject…. so long as she resides in the State and does not leave
the State for permanent residence outside the State.” This was interpreted as suggesting that a
woman from the State who marries outside the State would lose her status as a State Subject.
However, in a landmark judgment, in October 2002, the full bench of Jammu and Kashmir
High Court held that the daughter of a permanent resident of the State will not lose her
permanent resident status on marrying a person who is not a permanent resident and will
enjoy all rights, including property rights.35
On July 11, 2014, the Supreme Court of India dismissed a petition challenging the
constitutional validity of Article 370. A bench of Chief Justice R M Lodha, Justice Pinaki
Chandra Ghose and Justice Rohinton Fali Nariman dismissed the plea by Kumari
Vijayalakshmi Jha who argued that the article was a temporary provision that lapsed with the
dissolution of the State‟s Constituent Assembly in 1957.

34
www.thehindu.com/opinion/lead/understanding-article-370/article
35
Supra
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The Supreme Court five-judge Bench without referring to Prem Nath Kaul v. State of Jammu
and Kashmir36 pronounced a strange decision in Sampat Prakash v. State of Jammu and
Kashmir37 and held that (i) the wording of Article 370 makes no mention of the completion of
work of the Constituent Assembly or its dissolution and (ii) the Constituent Assembly
recommended that Article 370 should continue with one modification. The modification that
the court alluded to was the Explanation of 15th November 1952. The Apex Court‟s verdict
implied that just because the Jammu and Kashmir Constituent Assembly had so
recommended, way back in November 1952, Article 370 should continue. Perpetuating the
wish of a political authority long after it was dissolved and leaving no other system for
change is an impossible scheme to accept for any Constitution in any democracy.38
There are many issues with respect to Kashmir which are yet to emerge with clarity. The
Chapter on Fundamental rights of the Indian Constitution is not applicable to the State and
also the jurisdiction of the Supreme Court of India extends only to a limited extent. At
present, Article 370 can be repealed in accordance with the provision of Clause 3 of Article
370 which lays down that the President may, by public notification, declare that this Article
shall cease to be operative but only on the recommendation of the Constituent Assembly of
the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of
Jammu and Kashmir is convened and is willing to recommend its revocation. The Parliament
has the power to amend the Constitution to change this provision. However, this
Constitutional Amendment shall be subject to a judicial review and shall be required to
confirm to the theory of basic structure of the Constitution39 as it would affect the
relationship between the State and the Centre.

36
1959 AIR 749; A Constitution Bench consisting of five judges unanimously held that Article 370 (2) “shows
that the Constitution-makers attached great importance to the final decision of the Constituent Assembly, and
the continuance of the exercise of powers conferred on the Parliament and the President by the relevant
temporary provision of Article 370 (1) is made conditional on the final approval by the said Constituent
Assembly in the said matters”. It referred to Clause 3 and said that “the proviso to Clause (3) also emphasizes
the importance which was attached to the final decision of Constituent Assembly of Kashmir in regard to the
relevant matters covered by Article 370″. The court ruled that “the Constitution-makers were obviously anxious
that the said relationship should be finally determined by the Constituent Assembly of the State itself.”
37
AIR 1970, SC 1118
38
http://lawmantra.co.in/jammu-kashmir-the-conflict-of-article-370
39
Kesavanand Bharti vs State of Kerala, AIR 1973 SC 1461
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Bibliography:
1. Basu, DD, Introduction to the Constitution of India, 2015, Lexis Nexis
2. Constituent Assembly Debates (India), Vol. X, No. 5
3. Jagmohan, My Frozen Turbulence in Kashmir, 1991, Lancer Publishers
4. Jain , M. P.; Indian Constitutional Law, Fourth Edition Reprint, 2002, p.435
5. Lavakare, Arvind, „The Truth about Article 370’; 2005; p-24
6. Moraes, Frank, Witness To An Era, p. 220
7. Selected works of Jawaharlal Nehru, Vol. 18, p. 418
8. Sharma , B.L., Kashmir Awakes 1971, p-83
9. Sharma, Bodh Raj, The Special position of Jammu and Kashmir in the Indian
Constitution, The Indian Journal of Political Science, Vol. 19, No.3 (July-September
1958) Page no. 282
10. The People‟s Representation Act, 1957
11. The Representation of People (Conduct of Elections and Election Petitions) Rules,
1957.
Web Reference:
 https://en.wikipedia.org/wiki/Article_370
 http://shodhganga.inflibnet.ac.in/bitstream/10603/10659/17/17_annexure-d.pdf
 http://jammu-kashmir.com/documents/simla.html
 http://www.kashmirlife.net/draft-petition-challenging-article-35-a-83169/
 http://indiankanoon.org/doc/1573666/
 http://www.jammu-kashmir.com/documents/jk_art370.html
 http://www.satp.org/satporgtp/countries/india/states/jandk/documents/actsandordinanc
es/article_370_constitution_india.htm

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