1

DEDICATION

This research paper is dedicated to our respective families and honorable teachers. Their
wavering support and guidance not only motivated us to conduct this research but also
enlightened us with their productive thoughts and to make significant life changes. They shared
their valuable knowledge and experiences with us so that we could become professional and
competent lawyers in the future. We warmly adhere to their advices so that we could succeed in
future endeavors.
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Table of Contents

1……………… Thesis Statement

2……………… Abstract

3……………… Literature Review

4……………… Research Questions

5...…………… Aims & Objectives

6……….…… Research Methodology

7…..…………. Research Design

8……..……. Significance of study

9.…………….. Introduction

10…..…………. History of Jammu & Kashmir

11…..…………. UN Security Council’s Resolution 1948

12……………... Article 370 of Indian Constitution

13……….…..... Procedure used for removing Article 370

14……….…… Supreme Court Proceedings on Revocation

15….………... constitutionality of Revocation

16……………. Verdict

17……………. Effects of Revocation

18……………. Reaction of Kashmiris on the verdict

19……………. Steps to be taken by Pakistan

20……………. Conclusion

21……………. References
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1. Thesis Statement

The revocation of Article 370 in August 2019, altering the status of Jammu & Kashmir, has
ignited complex legal, political and humanitarian debates. The research critically examines the
constitutional implications, sociopolitical repercussions and international dimensions of this
significant event, shedding light on the multifaceted consequences and ongoing tensions in the
region.

2. Abstract

This paper primarily focuses on the revocation of Article 370 of Indian Constitution by the BJP
government on 5 August 2019 by using Majoritarian power. The abrogation of the Article 370 is
against the very spirit of the United Nations Security Council's resolution 1948 whose central
aspect was the proposal for a plebiscite or referendum in Jammu and Kashmir, intended to allow
the people of the region to express their political preferences—whether to join India, Pakistan, or
opt for an independent status. Moreover it is also against the principles of humanity and the
democratic norms at a broader level. This move was also against the fundamental rights such as
freedom of religion on one hand and on the other the targeting of one particular community by
the Indian government because Jammu and Kashmir (J&K) is the only Muslim majority state
which has around 67 percent Muslim population. The mission of the abrogation of article 370
was in fact mentioned in the manifesto of BJP since 1980. India claims to have 'signed' a
controversial document, the Instrument of Accession, on 26 October 1947 with the Maharaja of
Kashmir, in which the Maharaja obtained India's military help against popular insurgency. The
people of Kashmir and Pakistan do not accept the Indian claim. There are doubts about the very
existence of the Instrument of Accession. The United Nations also does not consider Indian
claim as legally valid: it recognizes Kashmir as a disputed territory. This study is a critical and
theoretical analysis to understand the actual myth and reality.

3. Literature Review

Malik , Salma, and Nasreen Akhtar. 2021. “EXPLAINING JAMMU AND KASHMIR
CONFLICT UNDER INDIAN ILLEGAL OCCUPATION: PAST AND PRESENT”. Margalla
Papers 25 (1):23-35. This paper attempts to glean into the history of the conflict, which has a
strong connection with the contemporary situation, while answering important questions: What
circumstances compelled people to rush to Kashmir soon after the independence? How has India,
over the decades, interpreted, misinterpreted, and manipulated world opinion in its favour? Why
and how have the Muslim world and international community shown apathy towards the
beleaguered Kashmiris? Lastly, can there be a way forward, especially after India’s illegal
 4

annexation of the UN declared disputed territory? It also highlights options available for a
plausible solution to this humanitarian issue.

Javed, Maham. 2020. “MAPPING OF KASHMIR CONFLICT UNDER NUGGET MODEL”.

Margalla Papers 24 (2):114-28. This paper examines the historical aspect of the Kashmir
conflict while discussing different related issues between Pakistan and India by using the Nugget
Model. This conflict-analysis tool helps an indepth understanding of the Kashmir conflict and
leads to identify root causes that are accelerating the conflict day-by-day.

CISS Insight Quarterly News & Views. Article 370 grants a special status to disputed territories
of the State of Jammu and Kashmir (J&K), under Indian control, in the Indian Union, and
regulates the relationship between India and the State. But Bhartiya Janta Party (BJP) seeks to
completely integrate the state of J & K into the Indian Union and extend full constitutional
framework to it.

Center for International Strategic Studies focuses on the issue of Kashmir with a watchful Eye, it
has shown a great many concerns the then existential threat to the special status of Jammu and
Kashmir from BJP. BJP’s opposition to Article 370 goes back to early 1950s when Dr. Syama
Prasad Mookerjee, leader of its predecessor party Bharatiya Jana Sangh (BJS) had opposed
Indian National Congress led by Jawaharlal Nehru to grant Kashmir the special status with its
own flag and then a Prime Minister. He termed the arrangement as further division of India as it
gave rise to prospects of self-rule and even independence. Thus, full integration of J&K
remained political objective earlier of BJS and now of BJP. In 1990s, BJP also called for
abrogation of Article 370 and its manifesto for election 2014 also advocated the same.

Alastair Lamb, Incomplete Partition: The Genesis of the Kashmir Dispute 1947-1948, Roxford
Books, 1997, p.175. As stated by Lamb, ’The veracity of this tale was challenged, albeit tacitly,
in M. C. Mahajan’s autobiography which appeared in 1963. M. C. Mahajan asserts that he did
not leave Delhi on October 26, following his arrival there early that morning. He indicated that
the joint visit to Jammu with V. P. Menon actually took place on 27 October.’ Menon and
Mahajan were going to Jammu to obtain the signature of the Maharaja on the Instrument of
Accession. Also, in the book Kashmir: A Disputed Legacy-1846-1990, Lamb states that Patiala
forces had already landed at Srinagar airfield on October 17, well before October 26, the date
Indian officials claim the Indian troops intervened in Jammu and Kashmir. p. 131.

India’s Kashmir Conundrum: Before and After the Abrogation of Article 370 By Sameer P.
Lalwani and Gillian Gayner. On August 5, 2019, the government of India revoked the
constitutional autonomy of its Muslim-majority state of Jammu and Kashmir. This report—based
on field interviews, new data collection, and extensive research— focuses on the revitalized
insurgency and mass uprising between 2013 and 2019, explains how the Kashmir conflict
evolved to a point that contributed to India’s extraordinary political gambit, and lays out both
New Delhi’s strategy and the challenges the government faces going forward.
 5

Article 370: A Constitutional History of Jammu and Kashmir by A. G. NOORANI. This book
notes that the redrafting of Article 370 and a review of the Constitution of Jammu and Kashmir
are necessary. It holds that amendments must be based on agreement between all the major
parties in Jammu and Kashmir. Given the political will, sincerity of purpose, and a spirit of
compromise, it is not difficult to retrieve from the wreckage of Article 370 a constitutional
settlement which satisfies the aspirations of the people of Jammu and Kashmir.

4. Research Questions

The main questions this research paper aims to find an answer of, are:

4.1. Why is Kashmir a bone of contention between the two nuclear states?

4.2. Does the occupying force allows the right of self identity and self determination to the
Kashmiris?

4.3. Does Pakistan’s allegation of India breaching UN Security Council’s resolution true
and hold any legal ground?

4.4. What are the effects of abrogation of Article 370?

4.5. Was India constitutionally correct in the abrogation of Article 370?

5. Aims and Objectives:

(i) Aims:

To critically analyze the constitutional changes resulting from the revocation of Article 370 in
Jammu and Kashmir.

To examine the socio-political and economic consequences of the altered status in the region.

To assess the international implications and responses to the revocation.

To explore the impact on the human rights and identity of the people in the affected region.

(ii) Objectives:

To investigate the legal and constitutional framework surrounding Article 370 and its revocation.

To analyze the socio-political changes in Jammu and Kashmir post the revocation.
 6

To evaluate the international community's response and diplomatic repercussions of the altered
status.

To assess the impact on human rights, demographic shifts, and cultural identity in the region.

To provide recommendations for potential resolutions or mitigations of the ongoing tensions.

Research Questions:

What were the constitutional and legal implications of revoking Article 370 in Jammu and
Kashmir?

How did the altered status affect the socio-political landscape of the region?

What were the international responses and diplomatic consequences of the revocation?

How has the revocation impacted human rights, demographic patterns, and cultural identity in
Jammu and Kashmir?

6. Research Methodology

The research will employ a mixed-methods approach, combining legal analysis, qualitative
interviews, and quantitative data analysis. Legal documents, government reports, and academic
literature will be analyzed for legal and constitutional aspects. Interviews with stakeholders,
including affected residents, legal experts, and policymakers, will provide qualitative insights.
Quantitative data on demographic shifts and economic indicators will be analyzed to assess the
broader socio-economic impact.

7. Research Design:

The research design will be exploratory and descriptive, focusing on both qualitative and
quantitative data. It will include a comprehensive literature review, legal analysis, case studies,
interviews, and statistical data analysis.

8. Significance of the Study:

This research is significant in providing an in-depth understanding of the complex implications

of the revocation of Article 370. It contributes to legal scholarship, informs policymakers, and
raises awareness about the human rights and identity issues in the affected region. The study also
 7

holds relevance for international relations, offering insights into diplomatic repercussions and
potential avenues for resolution.

9. Introduction

Kashmir has been at the heart of more than 75 years of animosity between India and Pakistan.
Pakistan claims Kashmir as its own territory, saying that in the light of partition plan 1943 the
Muslim-majority area should have been part of the new state of Pakistan, created in 1947 when
British colonial rule ended in the partition of the Indian subcontinent.The First Kashmiri War
broke out soon after partition and ended in 1949 with a United Nations-mediated ceasefire that
divided Kashmir into Pakistani- and Indian-administered regions.

The Kashmir dispute is the oldest unresolved international conflict in the world today. Pakistan
considers Kashmir as its core political dispute with India. So does the international community,
except India.

India's forcible occupation of the State of Jammu and Kashmir in 1947 is the main cause of the
dispute. India claims to have 'signed' a controversial document, the Instrument of Accession, on
26 October 1947 with the Maharaja of Kashmir, in which the Maharaja obtained India's military
help against popular insurgency. The people of Kashmir and Pakistan do not accept the Indian
claim. There are doubts about the very existence of the Instrument of Accession. The United
Nations also does not consider Indian claim as legally valid: it recognizes Kashmir as a disputed
territory. With the exception of India, the entire world community recognizes Kashmir as a
disputed territory. The fact is that all the principles on the basis of which the Indian subcontinent
was partitioned by the British in 1947 justify Kashmir becoming a part of Pakistan: the State had
majority Muslim population, and it not only enjoyed geographical proximity with Pakistan but
also had essential economic linkages with the territories constituting Pakistan.

The Social Contract Theory, which is nearly as old as philosophy itself, regards a person’s moral
or political responsibilities being dependent upon a contract or agreement between them to form
a society. Simply asserted, Social Contract denotes to the agreement either between the people
and their ruler or among the people in a community. Moreover, in Political Theory, Social
Contract is considered as one of the most important theories that illuminates the origin of the
state and is explained emphatically by Thomas Hobbes (1588-1679), John Locke (1632-1704)
and Jean Jacques Rousseau (1712-1778). The Social Contractualists trusted that the state is the
result of an agreement entered into by men who originally did not live under any organization.
Therefore, the history of the world could be separated into two periods-one preceding the
establishment of the state and the other following the establishment of the state. Despite these
theories, laws and the commandments of the constitution,the ruling Indian Govt. deceived the
Kashmiris.
 8

In 2019, BJP government bifurcated Kashmir into two regions – Jammu and Kashmir in the west
and Ladakh in the east – to be ruled directly from New Delhi. Kashmir lost its flag, criminal code
and constitution enshrined in Article 370. The 2019 decision by the BJP was a campaign promise
to end Article 370, which granted special status to the disputed Himalayan region. No regional
elections have been conducted in the two regions since then, but the Supreme Court ordered
Indian-administered Kashmir to hold local legislative elections by September 30 next year.

In July 2019, US President Donald Trump offered to mediate the Kashmir issue between India
and Pakistan.

On August 4, 2019, Prominent Kashmiri leaders, including former chief ministers Omar
Abdullah and Mehbooba Mufti were placed under house arrest. Internet and mobile services
were curtailed, and section 144, which prevents a gathering of more than four people in public
spaces, was imposed.

10. History of Jammu and Kashmir

The State of Jammu and Kashmir has historically remained independent, except in the anarchical
conditions of the late 18th and first half of the 19th century, or when incorporated in the vast
empires set up by the Mauryas (3 rd century BC), the Mughals (16th to 18th century) and the
British (mid-19th to mid-20th century). All these empires included not only present-day India
and Pakistan but some other countries of the region as well. Until 1846, Kashmir was part of the
Sikh empire. In that year, the British defeated the Sikhs and sold Kashmir to Gulab Singh of
Jammu for Rs. 7.5 million under the Treaty of Amritsar. Gulab Singh, the Mahraja, signed a
separate treaty with the British which gave him the status of an independent princely ruler of
Kashmir. Gulab Singh died in 1857 and was replaced by Rambir Singh (1857-1885). Two other
Marajas, Partab Singh (1885-1925) and Hari Singh (1925-1949) ruled in succession.

Gulab Singh and his successors ruled Kashmir in a tyrannical and repressive way. The people of
Kashmir, nearly 80 per cent of who were Muslims, rose against Maharaja Hari Singh's rule. He
ruthlessly crushed a mass uprising in 1931. In 1932, Sheikh Abdullah formed Kashmir's first
political party the All Jammu & Kashmir Muslim Conference (renamed as National Conference
in 1939). In 1934, the Maharaja gave way and allowed limited democracy in the form of a
Legislative Assembly. However, unease with the Maharaja's rule continued. According to the
instruments of partition of India, the rulers of princely states were given the choice to freely
accede to either India or Pakistan, or to remain independent. They were, however, advised to
accede to the contiguous dominion, taking into consideration the geographical and ethnic issues.

In Kashmir, however, the Maharaja hesitated. The principally Muslim population, having seen
the early and covert arrival of Indian troops, rebelled and things got out of the Maharaja's hands.
The people of Kashmir were demanding to join Pakistan. The Maharaja, fearing tribal warfare,
 9

eventually gave way to the Indian pressure and agreed to join India by, as India claims, 'signing'
the controversial Instrument of Accession on 26 October 1947. Kashmir was provisionally
accepted into the Indian Union pending a free and impartial plebiscite. This was spelled out in a
letter from the Governor General of India, Lord Mountbatten, to the Maharaja on 27 October
1947. In the letter, accepting the accession, Mountbatten made it clear that the State would only
be incorporated into the Indian Union after a reference had been made to the people of Kashmir.
Having accepted the principle of a plebiscite, India has since obstructed all attempts at holding a
plebiscite.

In 1947, India and Pakistan went to war over Kashmir. During the war, it was India which first
took the Kashmir dispute to the United Nations on 1 January 1948. The following year, on 1
January 1949, the UN helped enforce ceasefire between the two countries. The ceasefire line is
called the Line of Control. It was an outcome of a mutual consent by India and Pakistan that the
UN Security Council (UNSC) and UN Commission for India and Pakistan (UNCIP) passed
several resolutions in years following the 1947-48 war. The UNSC Resolution of 21 April 1948--
one of the principal UN resolutions on Kashmir stated that "both India and Pakistan desire that
the question of the accession of Jammu and Kashmir to India or Pakistan should be decided
through the democratic method of a free and impartial plebiscite". Subsequent UNSC
Resolutions reiterated the same stand. UNCIP Resolutions of 3 August 1948 and 5 January 1949
reinforced UNSC resolutions.

11. Security Council's Resolution 1948

The United Nations Security Council's Resolution on Jammu and Kashmir on 21 April 1948
stands as a seminal document addressing the early stages of the India-Pakistan conflict over the
disputed region.

- The resolution emerged during a period of intense conflict between India and Pakistan over
the princely state of Jammu and Kashmir following the partition of British India in 1947,
recognizing the urgency of the situation and the potential for regional instability, the United
Nations Security Council intervened on the request of firstly India and then Pakistan to address
the crisis diplomatically and mitigate the risk of further conflict.

It led to the establishment of the United Nations Commission for India and Pakistan (UNCIP) to
mediate and facilitate a peaceful resolution to the Kashmir. Moreover it also called for an
immediate ceasefire between Indian and Pakistani forces, aiming to create conditions conducive
to a diplomatic resolution, emphasized the withdrawal of Pakistani forces and the reduction of
Indian forces to a minimum level required for maintaining law and order.
 10

11.1. Plebiscite Proposal:

- A central aspect of the resolution was the proposal for a plebiscite or referendum in Jammu
and Kashmir. The intended purpose was to allow the people of the region to express their
political preferences—whether to join India, Pakistan, or opt for an independent status. The
resolution also emphasized international oversight of the plebiscite process, signaling the United
Nations' commitment to ensuring the fairness and impartiality of the mechanism.

Despite the adoption of the resolution and subsequent efforts, the proposed plebiscite has not
been implemented. The Kashmir dispute remains a complex and unresolved issue, contributing
to ongoing tensions and diplomatic challenges between India and Pakistan.

The non-enforcement of the plebiscite proposal in Jammu and Kashmir, as outlined in the United
Nations Security Council Resolution 1948, has been a persistent and complex issue with far-
reaching implications. There are many factors contributing to the failure of implementing the
proposed plebiscite and understanding the broader consequences some of which are as follows:

11.1.1. Geopolitical Realities:

- The geopolitical landscape in South Asia, particularly the deep-rooted animosities and
conflicts between India and Pakistan, has been a major impediment. The two countries have
engaged in multiple wars and conflicts, making the implementation of a plebiscite challenging.

11.1.2. Bilateral Tensions:

- Bilateral tensions between India and Pakistan have resulted in a lack of trust and cooperation.
Mutual suspicion and a history of territorial disputes have led both nations to resist external
intervention, particularly in matters concerning Jammu and Kashmir.

11.1.3. Changed Demographics:

- Over the decades, demographic changes in Jammu and Kashmir have occurred, altering the
composition of the population. This evolution has added complexity to the idea of conducting a
plebiscite that accurately reflects the will of the people as it stood in 1948.

11.1.4. Unilateral Actions:

- Unilateral actions by India, such as the integration of Jammu and Kashmir into the Indian
Union in 2019, have further complicated the prospects of holding a plebiscite. Such actions have
been met with strong opposition from Pakistan and have altered the status quo on the ground.
 11

11.1.5. Security Concerns:

- The region's security dynamics, including militancy and cross-border terrorism, have created
an environment not conducive to a free and fair plebiscite. Security concerns have been cited by
India as a reason to resist external interference in the region.

11.1.6. Global Shifts in Geopolitics:

- Changes in the global geopolitical landscape have also influenced the dynamics of the
Kashmir issue. The Cold War, followed by post-Cold War shifts, altered the priorities of major
powers and their engagement in regional conflicts.

11.1.7. Human Rights Concerns:

- Human rights concerns in the region, including allegations of abuses by security forces and
restrictions on civil liberties, have drawn international attention. These concerns further
complicate the resolution of the Kashmir issue and the possibility of conducting a fair plebiscite.

11.1.8. Ineffective Mediation Efforts:

- Mediation efforts by the United Nations and other international actors have not yielded
significant breakthroughs. The inability to bring both parties to the negotiating table and reach a
consensus on the terms of a plebiscite has been a critical factor.

The non-enforcement of the plebiscite proposal in Jammu and Kashmir is a multifaceted issue
intertwined with historical, geopolitical, and regional complexities. Resolving the Kashmir
dispute would require a concerted effort from both India and Pakistan, supported by international
diplomatic initiatives aimed at addressing the underlying issues and fostering a conducive
environment for a fair and inclusive plebiscite.

12. Article 370 of Indian Constitution

Article 370, which came into effect in October 1949, granted Kashmir autonomy of internal
administration, allowing it to make its own laws in all matters except finance, defence, foreign
affairs and communications. The Indian-administered region established a separate constitution
and a separate flag and denied property rights in the region to outsiders.

Article 35A, a further provision added to Article 370 in 1954, empowered state lawmakers to
ensure special rights and privileges for permanent residents of the state by prohibiting non-
Kashmiris to buy property in the region raising fears of “demographic shift” in the Muslim-
majority region.
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13. Procedure used for removing Article 370

On 5 August 2019, the Home Minister Amit Shah introduced the Jammu and Kashmir
Reorganization Bill, 2019 in the Indian Parliament (Rajya Sabha) to convert Jammu and
Kashmir's status of a state to two separate union territories, namely Union Territory of Jammu
and Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir was
proposed to have a legislature under the bill whereas the union territory of Ladakh was proposed
to not have one. By the end of the day, the bill was passed by Rajya sabha with 125 votes in its
favor and 61 against (67%). The next day the bill was passed by the Lok Sabha with 370 votes in
its favor and 70 against it (84%). The bill became an Act after it was signed by the President.
Home Minister Amit Shah announced in the Rajya Sabha (upper house of the Indian Parliament)
that the President of India had issued the Constitution (Application to Jammu and Kashmir)
Order, 2019 under Article 370, superseding the Constitution (Application to Jammu and
Kashmir) Order, 1954. The order stated that all the provisions of the Indian Constitution applied
to Jammu and Kashmir. Whereas the 1954 order specified that only some articles of the Indian
constitution were to apply to the state, the new order removed any such restrictions. This in
effect meant that the separate Constitution of Jammu and Kashmir stood abrogated. The
President issued the order with the "concurrence of the Government of State of Jammu and
Kashmir", which apparently meant that the Governor was appointed by the Union government.
The Presidential Order 2019 also added clause (4) with four sub-clauses to Article 367 under
"interpretations". The phrase "Sadar-i-Riyasat acting on the aid and advice of the Council of
Ministers" shall be construed as the "Governor of Jammu and Kashmir". The phrase "State
government" shall include the Governor. In the proviso to clause (3) of Article 370 of the
Constitution, the expression "Constituent Assembly of the State referred to in clause (2)" shall
read "Legislative Assembly of the State". According to Jill Cottrell; some of the Presidential
orders under Article 370 have been issued since 1954 in similar circumstances when the state
was under President's rule. The Union government interpreted the "concurrence of the state
government”, under these circumstances, to mean the Governor.
Immediately after placing the Presidential Order 2019 before the Rajya Sabha, Home Minister
Amit Shah moved a resolution recommending that the President should issue an order under
Article 370 (3) rendering all clauses of Article 370 inoperative. After the resolution was adopted
by both houses of the Parliament, the President issued Constitutional Order 273 on 6 August
2019 replacing the extant text of Article 370 with the following text:

“370. All provisions of this Constitution, as amended from time to time, without any
modifications or exceptions shall apply to the State of Jammu and Kashmir notwithstanding
anything contrary contained in article 152 or article 308 or any other article of this Constitution
or any other provision of the Constitution of Jammu and Kashmir or any law, document,
judgment, ordinance, order, by-law, rule, regulation, notification, custom or usage having the
 13

force of law in the territory of India, or any other instrument, treaty or agreement as envisaged
under article 363 or otherwise.”

14. Supreme court proceedings on revocation of Article 370

After a gap of almost four years, the Supreme Court of India set up a new constitution bench that
began proceedings on 23 writ petitions challenging the legality of revocation of Article 370 of
the Indian Constitution that enshrined special status and limited autonomy for the Indian Illegally
Occupied Jammu and Kashmir (IIOJK).

The Supreme Court decided to conduct day-to-day proceedings from August 2, 2023. The five-
member bench comprised Chief Justice D.Y. Chandrachud, and Justices Sanjay Kishan Kaul,
Sanjiv Khanna, B.R. Gavai, and Surya Kant.

Interestingly, no genuine Kashmiri citizens of integrity, like human rights activist Shehla Rashid
filed a petition related to Article 370 before the Indian Supreme Court. It is perhaps because they
had no faith in the Indian Constitution and Judiciary, especially as in recent years, the Modi
regime had used the judiciary as a means to advance its Hindutva ideology and turned the Indian
Supreme Court into a Kangaroo Court.

Challenging Indian Government’s act of revoking Articles 370 and 35A, Senior Advocate Kapil
Sibal, Advocate Gopal Subramanian, Advocate Zaffar Shah, Advocate Rajeev Dhavan,
Advocate Dushyant Dave, Advocate Shekhar Naphade, Advocate Dinesh Dwivedi, Advocate
Chander Uday Singh, Advocate Sanjay Parekh, Advocate P.C Sen, Advocate Nitya
Ramakrishnan, Menaka Guruswamy, Advocate Manish Tewari, Advocate Warisha Farasat,
Advocate Gopal Sankanarayanan represented National Conference’s. Muhammad Akbar Lone,
Muzaffar Iqbal Khan, Jammu and Kashmir Bar Association, Jammu and Kashmir People’s
Conference, Ms. Rifat Ara Butt, former Kashmir interlocutor Radha Kumar, Manohar Lal
Sharma & Prem Shanker Jha, Inderji Tikoo, Satish Jacob, and MY Tarigami, Peoples Union for
Civil Liberties (PUCL), People’s Democratic Party, Javid Bhat and Awami National Conference,
a politician from Arunachal Pradesh, RTI activist Venkatesh Nayak, and petitioner Soyaib
Qureshi, respectively.

On the other hand, Attorney General R Venkataramani, Solicitor General (SG) Tushar Mehta,
Additional Solicitor General KM Nataraj and Advocate Rakesh Dwivedi argued on behalf on the
Centre, whereas Advocate Kanu Agarwal appeared on behalf of the State government of IIOJK.
Advocate V Giri appeared on behalf of All India Kashmiri Samaj, Advocate Mahesh Jethmalani
argued for the members of the Gujjar Bakarwal community in IIOJK, and Advocate Gurukrishna
Kumar appeared for people who had migrated to IIOJK from regions that came to be part of
Pakistan.
While highlighting that revocation of Article 370 was against the Constitution, it was argued by
 14

the petitioners that Article 370 had assumed permanence following the dissolution of the
Constituent Assembly of IIOJK in 1957. Clause 3 of Article 370 made recommendation from the
Constituent Assembly essential to remove Article 370. Hence, in the wake of the dissolution of
the Constituent Assembly, the provision could not be revoked. The recommendation for
abrogation has to come from an agency that is equal in mandate and stature. After 1957, there is
no agency which is equal to the Constituent Assembly of IIOJK. The Constitution (Application
to Jammu and Kashmir) Order, 1954 was promulgated when the Constituent Assembly was still
in existence. Hence, the Constituent Assembly would have abrogated Article 370 if they wanted
to. The Governor had the power to dissolve the Assembly only on the aid and advice of the
council of ministers. It washlighted that when the Governor of IIOJK dissolved the State
Assembly on November 21, 2018, there was no Council of Ministers.
It was further argued that the Constitution (Application to Jammu and Kashmir) Order, 1954
made a ‘solemn promise’ not to change ‘boundaries’ without concurrence. There was an
understanding between the Constitution framers and Maharaja Hari Singh who, while in favour
of independence of his state, had allegedly signed the ‘Instrument of Accession’ to India under
which Article 370 was inserted and no process could now be followed to abrogate it. Unilateral
executive decision cannot change the terms of a relationship which is constitutionally embedded
in Article 370. The Section 5 of the Jammu & Kashmir Constitution shows that Article 370 was
meant to continue to remain in existence. Both the ‘Constitution’ of Jammu and Kashmir and the
Constitution of India speak to each other through Article 370.
The Maharaja entered into an alleged ‘Instrument of Accession’ but did not enter into a merger
agreement. IIOJK ‘Constitution’ required Governor to act in the best interests of the people of
the State. However, the Governor committed ‘serious constitutional misconduct’ by
recommending to the President to abrogate Article 370 which resulted in the promulgation of
Presidential Order C.O. 272. As per Section 92 of the IIOJK ‘Constitution’, no change can be
made to the IIOJK ‘Constitution’ even during the Governor’s Rule. Article 3 of the Indian
Constitution (Formation of new States and alteration of areas, boundaries or names of existing
States) underscores that it is mandatory for the President to refer the Bill to the State legislature
which is a condition precedent before one can invoke Article 3.
Article 370 of the Constitution cannot be revoked during President’s Rule because the
concurrence of the State legislature is required. It was highlighted that for the election of the
President, the electorate contains the Members of Parliament of both the Rajya Sabha and the
Lok Sabha as well as the legislative members of respective states. But as Jammu & Kashmir is
not a State anymore, it has no say in the election of the President. States can be converted into
Union Territories under Article 3 of the Constitution due to the Constitution (Eighteenth
Amendment) Act, 1966. However, the Eighteenth Amendment was not applicable to Jammu &
Kashmir on August 5, 2019. Asymmetrical federalism gives protection against majoritarianism
and that the Indian Constitution is anti-majoritarianism. The bench was also informed that at the
time of abrogation of Article 370, three former Chief Ministers as well as most of the Legislative
Assembly members were under detention under the Public Safety Act.
 15

Those representing the Union Government argued that on a combined reading of the so-called
‘Instrument of Accession’ and the Proclamation followed by the adoption of Article 370, all
traces of sovereignty were surrendered. Article 370 was designed to facilitate the constitutional
integration process along the same lines as it happened with other princely states. Framers of the
Constitution did not want Article 370 to be a permanent feature and, therefore, the provision is
contained in the temporary and transitory provisions of the constitution. They insisted that
Article 370 was acting to the detriment of central government welfare schemes reaching the
people of the valley. Following abrogation, they argued, a large number of fundamental rights
and other rights are now conferred upon the residents of IIOJK and that they will be fully at par
with the rest of the country.
Those arguing on behalf of the Union government also stressed that it is important that IIOJK
remains as a Union Territory for some time as since August 5 2019, stone pelting and other such
activities have been reduced by 97.2 percent. It was claimed that security persons casualty had
reduced by 65.9 percent. The central sector scheme investment was currently at 28400 crores.
The investment proposals for other than central schemes were 78000 crores. Till date, the actual
investment made were 2153 crores. Several e-initiatives have taken place and as a result of that
the number of projects has risen from 9229 in 2018 to 92580.
They stressed that, for the first time, the three-tier panchayat raj system is introduced. On the
issue of abrogation of Article 370, the whole Parliament was taken into confidence including
MPs from Kashmir. Article 370 is not in sync with the general federal features of the
Constitution for the rest of the country and the Union. Article 370(3) indicates that ultimate legal
sovereignty rests with the Union of India. Maharaja of Jammu & Kashmir had allegedly
recognised the supremacy of the Indian constitution and accordingly Article 1 of the Constitution
was enforced.
It was brought to the notice of the Bench that the petitioner and National Conference leader
Mohammad Akbar Lone had shouted ‘Pakistan Zindabad’ in the IIOJK Assembly in 2018 and
had a soft corner for secessionist forces. To this, Mohammad Akbar Lone was asked to submit an
affidavit expressing his allegiance to the Constitution of India.
With these arguments the hearing of the case came to an end and the verdict was reserved by the
five-member bench.
While those challenging the revocation of Article 370 based their arguments on sound historical
facts, the defence relied mostly on arguments that are much distant from the reality. To claim
that the revocation ensured economic development, or brought gender equality or peace in
IIOJK, is more fiction then fact. As a matter of fact, IIOJK’s economy is ruined after India’s
unilateral actions of August 5, 2019 – first due to prolonged curfew and double lockdown and
subsequently due to appointments of non-Kashmiri people on jobs in the state that were
previously reserved only for the Kashmiri people. In fact, in the initial five months of Modi’s
second regime, the economy of Kashmir lost $5.32 billion and more than 100,000 Kashmiris lost
their jobs in the sectors of handicrafts, tourism and information technology. Unemployment rate
in IIOJK is reportedly 25 percent, whereas in India it is 7.6 percent8. Demolition of people’s
houses and businesses early this year further deteriorated the situation for the Kashmiri people.
 16

Above all, to silence people under the shadow of the gun does not create peace.

15. Constitutionality of revocation of Article 370

On 5 August 2019 Jammu and Kashmir Reorganization Bill, 2019 was introduced in the Indian
Parliament (Rajya Sabha) to convert Jammu and Kashmir's status of a state to two separate union
territories, namely Union Territory of Jammu and Kashmir and Union Territory of Ladakh by
revocation of Article (370) of the Indian Constitution. The union territory of Jammu and
Kashmir was proposed to have a legislature under the bill whereas the union territory of Ladakh
was proposed to not have one.

But it was in contradiction with the constitution of India as well as the constitution of Jammu and
Kashmir as the Clause 3 of Article 370 made recommendation from the Constituent Assembly
essential to remove Article 370. Hence, in the wake of the dissolution of the Constituent
Assembly, the provision could not be revoked. The recommendation for abrogation has to come
from an agency that is equal in mandate and stature. After 1957, there is no agency which is
equal to the Constituent Assembly of IIOJK. The Governor had the power to dissolve the
Assembly only on the aid and advice of the council of ministers. But the Governor of IIOJK
dissolved the State Assembly on November 21, 2018, so there was no Council of Ministers.

Moreover Unilateral executive decision cannot change the terms of a relationship which is
constitutionally embedded in Article 370. The Section 5 of the Jammu & Kashmir Constitution
shows that Article 370 was meant to continue to remain in existence. Both the ‘Constitution’ of
Jammu and Kashmir and the Constitution of India speak to each other through Article 370.

In addition to it IIOJK ‘Constitution’ required Governor to act in the best interests of the people
of the State. However, the Governor committed ‘serious constitutional misconduct’ by
recommending to the President to abrogate Article 370 which resulted in the promulgation of
Presidential Order revoking Article 370.

Furthermore as per Section 92 of the IIOJK ‘Constitution’, no change can be made to the IIOJK
‘Constitution’ even during the Governor’s Rule. Article 3 of the Indian Constitution (Formation
of new States and alteration of areas, boundaries or names of existing States) underscores that it
is mandatory for the President to refer the Bill to the State legislature which is a condition
precedent before one can invoke Article 3.

States can be converted into Union Territories under Article 3 of the Constitution due to the
Constitution Act, 1966. However, it was not applicable to Jammu & Kashmir on August 5, 2019.

At the time of abrogation of Article 370, three former Chief Ministers as well as most of the
Legislative Assembly members were under detention under the Public Safety Act.

16. Verdict (Excerpts)

 17

In a major setback to Kashmiri political groups, India’s Supreme Court upheld a 2019 decision
by Prime Minister Narendra Modi’s government to revoke the special status for Indian-
administered Kashmir, which gave it a degree of autonomy.

The five-judge constitutional bench of the Supreme Court ruled that

"The region’s special status had been a temporary provision and removing It in 2019 was
constitutionally valid".

"Jammu and Kashmir should be restored to the same statehood as any other Indian state – with
no separate autonomy rights – at the earliest and as soon as possible”.

Chief Justice DY Chandrachud said,

“Article 370 was an interim arrangement due to war conditions in the state,”

ReferringtotheprovisionintheIndianConstitutionthatprovidedthespecialstatusafterMuslim-
majorityKashmir’sHindurulersignedan alleged agreementin1947tojoinIndia.

17. Effects of Revocation of Article 370

 18

On August 5, 2019, Indian Prime Minister Narendra Modi’s ruling Bharatiya Janata Party (BJP)
announced the revocation of Articles 370 and 35-A from the country’s constitution. These two
connected pieces of legislation grant Jammu and Kashmir—the Indian Illegally Occupied portion
of the overall Kashmir region—special semi-autonomous status. Scrapping these provisions have
the following implications for Jammu and Kashmir’s citizens.

18. Reaction of Kashmiris on the verdict

 19

The most powerful reaction to revocation of Article 370 came from the Indian held
Kashmir. The autonomy granted to Jammu and Kashmir under Article 370 had emotional and
symbolic importance for the masses of Kashmir. When Kashmiris were struggling, for their
right of self determination; the decision of revocation snatched away their, existing,
special status in India. The act of revocation bred deep rooted suspicion and fear about
their social, political and religious identity.

Omar Abdullah, a former chief minister and vice president of the Jammu & Kashmir National
Conference party, posted on X.

“Disappointed but not disheartened, The struggle will continue. It took the BJP decades to reach
here. We are also prepared for the long haul.”

Mehbooba Mufti, another former chief minister and president of the Jammu and Kashmir
People’s Democratic Party, echoed those views. “The people of J&K are not going to lose hope
or give up. Our fight for honor and dignity will continue regardless. This isn’t the end of the road
for us,” she posted on X.

Many Kashmiris view the 2019 decision as an annexation, saying new laws were designed to
change the region’s demographics. Members of minority Buddhist communities initially
welcomed the move, but many of them later expressed fear of losing land and jobs in the
Himalayan area.

Challengers of government’s 2019 decision maintained that only the Constituent Assembly of
Indian-administered Kashmir could decide on the special status of the region and contested
whether the Indian Parliament had the power to revoke it.

19. Steps to be taken by Pakistan

Despite its efforts Pakistan got a little success in amassing support for its stance on
Kashmir dispute. All this demands a revision of existing policy on Kashmir. A policy
alternative to highlight Kashmir dispute and persuade international community to intervene for
the peaceful resolution of the dispute is; One of the important determinants of foreign policy is
public opinion. Among the limited options Pakistan had to deal with the existing challenges in
the region one important area to focus is that of global public opinion. Pakistan needs to
utilize all its resources to fund and encourage researches on human rights violations in Kashmir.
Global opinion makers including academia, journalists and human rights activists must be
approached and convinced.

Indian courts do not have any jurisdiction to decide the fate of a “disputed territory” (recognized
as such by the United Nations) and therefore, proceedings in Indian courts do not mean anything.
 20

World community must also be reminded that Indian claims of Maharaja signing the ‘Instrument
of Accession’ on 26 October, 1947, has no basis as has been proved by a number of eminent
historians particularly Alastair Lamb. In fact, Maharaja had by that time lost legal authority to
transfer the sovereign title to India as he had lost effective control of most parts of Jammu and
Kashmir. When the matter was taken to the United Nations Security Council, the Kashmiris were
promised that they would be given their fundamental right of self-determination to which both
India and Pakistan agreed but later India backtracked.

This right of self-determination is protected under the UNSC resolutions on Kashmir and the
UNGA Declaration of Friendly Relations, which was adopted in 1970 and is considered an
authoritative indication of customary international law. Several other UNSC and UNGA
resolutions, including Resolution 2649 of 1970 again reaffirmed the right of selfdetermination of
the Kashmiri people.
Envoys of the foreign missions based in Islamabad should be given regular briefings on the
situation of IIOJK. They must be reminded that India cannot deny Kashmiri people their
fundamental right of self-determination promised to them under number of relevant UNSC
resolutions. Visits should also be arranged for these envoys to meet Kashmiri refugees who had
migrated to Azad Jammu and Kashmir from IIOJK so that they have first-hand knowledge of the
plight of the Kashmiri people.
Introduction of ‘Kashmir Chair’ in foreign Universities would help in creating awareness in the
students and academia. In fact, keeping in view the fact that Kashmiri’s struggle for the right to
selfdetermination is going to be a long fight, creating Kashmir centres in Pakistani Universities
would also help in preparing future advocates of the Kashmir cause who can present the
Kashmiris casemore effectively to the world community

20. Conclusion

The Jammu and Kashmir is a disputeed region betweenPakistan and India. A war broke out
among the two countries regarding accession of Kashmir in 1948, India spoke with the UN,
requesting that it interfere. The UN recommended having a plebiscite to resolve if the region
should merge with India or Pakistan. Unfortunately, before the plebiscite, the two nations were
incapable of reaching a settlement on demilitarizing the region. In 1965, an additional battle
broke out. At that time, in 1999, India was involved in a temporary but intense war with
Pakistani troops. Both states had also proclaimed themselves as nuclear states through at the
time. Currently, both states profess absolute authority of Kashmir, nonetheless merely govern
portions of it, which are denoted as "Indian-administered Kashmir" and "Pakistan-administered
Kashmir" worldwide. India detached the seventy years long special status on August 5, as the
ruling Party (BJP) guaranteed in its 2019 voting outline. Article 370 was meant to express the
unique identity of Jammu and Kashmir. The move is said to be unconstitutional because after the
dissolution of the Constituent Assembly in 1956, the power of abrogation of Article 370
 21

vanished. Pakistan slammed the move, claiming it "unlawful" and promised to "take all available
tools" to stop it.

Resolving the Kashmir dispute would require a concerted effort from both India and Pakistan,
supported by international diplomatic initiatives aimed at addressing the underlying issues and
fostering a conducive environment for a fair and inclusive plebiscite.
 22

21. References:

Mujtaba Razvi, The Frontiers of Pakistan, Karachi, National Publishing House Ltd., 1971,
p.94.

https://www.journal.ciss.org.pk/index.php/ciss-insight/article/view/165?
articlesBySameAuthorPage=2

Chaudhri Muhammad Ali, The Emergence of Pakistan, Research society of Pakistan,

Lahore, 1985, p. 284.

https://www.issi.org.pk/wp-content/uploads/2014/06/1295853266_28991011.pdf

V. P. Menon, The Transfer of Power in India, Calcutta, Orient Longmans, 1956, p. 384.

V. P. Menon, The Story of Integration of the Indian States, Calcutta, Orient Longmans,
1956, p. 394.

Lord Birdwood, Two Nations and Kashmir, London, Robert Hale Limited, 1956, p. 74;
quoted by Chaudhri Muhammad Ali, op.cit. p. 216.

Dr. Ijaz Hussain, Kashmir Dispute: An International Law Perspective, National Institute
of Pakistan Studies, 1998, pp. 141-152.

https://margallapapers.ndu.edu.pk/site/article/view/48

https://margallapapers.ndu.edu.pk/site/article/view/14

https://issi.org.pk/tag/article-370-and-35-a/

https://issi.org.pk/issue-brief-on-supreme-court-reserves-verdict-on-article-370-case-what-to-
expect/

https://www.journal.ciss.org.pk/index.php/ciss-insight/article/view/165

https://digitallibrary.un.org/record/783774

https://commonslibrary.parliament.uk/kashmir-the-effects-of-revoking-article-370/