Introduction

Bernier the first European to visit Kashmir wrote in 1665: “In truth the kingdom of Jammu and Kashmir
surpasses in beauty all that my warmest imagination had anticipated. The splendor and salubriousness of
the Kashmir valley is legendary, one of the greatest Hindi poet kalidas once said that Kashmir is more
beautiful than the beauty of heaven and is a source of supreme bliss and happiness” Jammu & Kashmir is
a state the northern part of the Indian subcontinent. The Mughal emperor Jahangir once said while living
in a houseboat in dal lake “gar firdaus, ruhe zamin ast, hamin asto, hamin asto, hamin ast” which means if
ever there is heaven on earth, it’s here, it’s here, it’s here. Most part of this beautiful state is in the
Himalayas, it shares international borders with Pakistan and china because of which this state faces a lot
of insurgencies and conflicts. In history also J&K has always been in conflict, a lot of ruler’s ruled the
land of J&K. as it is rightly said nothing is perfect in this world this state has gotten everything still for
the people of Jammu and Kashmir finding peace is a rare thing. Ashoka’s empire flourished in this state
which is evident from the historical records of the stupa’s, and the Buddhist temples, another is of the
great Scythian ruler kanishka and after that of mihirkula.

The genises of the demand for the new constituent assembly can be traced in the struggle which the
Indian nationalist leaders faced during the time of independence, the demand for the constituent assembly
by the congress was made by the national congress in 1934 and there after in all of their resolutions, this
demand of a constituent assembly was always resisted by the britishers until the outbreak of world war II
when the external circumstances forced them to think upon giving India independence and solving their
constitutional problem, after the visit of Sir Stafford Cripps and after a lot of negotiations it was finally
decided that an elected body of Indians should frame the constitution of India to make India autonomous,
finally the British government on 11th march 1942 declared to set up a constituent assembly to set up a
constitution for India after the end of world war II.

1
While the Britishers were ruling in India, India was divided into two parts British India and Indian India,
British India consisted 2/3rd of the total land and population and Indian India consisted of the remaining
1/3rd , the British India was divided into 12 provinces and the Indian India was divided into 564 princely
states, there existed British paramountacy over the princely states which lapsed with the Indian
independence act of 1947. Now the problem of bringing the princely states emerged where most of the
princely states completely ceded to the union of India except Hyderabad, Kashmir, junagarh and two
insignificant ones, the agreement establishing the relationship between the union and the states laid down
that the states can on their own frame their constituent assembly which was not a plausible idea as they all
lacked proper direction and functioning, still the state of Mysore, Travancore and cochin and saurashtra
made their constituent assembly, in 1948 BN Rau was chosen to head the committee to make a model of
constitution for the states, the committee made a model constitution and was ready but after a meeting of
the prime ministers of the states it was decided that this was not a good idea, finally this scheme became
obsolete, it was consented between the states and the union that ratification of the constitution will be
done by the raj pramukh or the ruler on the basis of the resolution adopted by the constituent assembly of
the union or the state where such body existed,the process of integration started and in this whole process
of integration of states one state acted differently, the state of J&K, all other states adopted the
constitution and were merged with the nation’s integral part the state of J&K expressed inability to the
constituent assembly and asked to extend the instrument of accession till the state’s constituent assembly
had taken a decision in the matter, the merger of Hyderabad and junagarh was also problematic. After the
accession of J&K with India the matters of external affairs, defence, communications were transferred to
the government of India and the parliament of India was only allowed to make laws relating to these three
matters only. It retained its autonomy keeping the door open internal sovereignty was in the hands of the
ruler itself which is clearly stated in the clause 8 of the instrument of accession.

CLAUSE 8 of the instrument of accession states: -

[Nothing in this instrument affects the continuance of my sovereignty in and over this state, or as
provided by or under this instrument, the exercise of any powers, authority and rights now enjoyed by me
as ruler of this state or the validity of any law at present in force in this state].1

This position has been reiterated in the case of prem nath kaul vs. state of Jammu & Kashmir in which the
court said that the execution of the instrument did not affect in any manner the legislative, executive, and
the judicial power in regard of the government of the state, which then vested in the ruler of the state.
Again in the case of rehman shagoo vs. state of Jammu & Kashmir in which the court said that, though

1
http://shodhganga.inflibnet.ac.in/bitstream/10603/32675/8/08_chapter%204.pdf

2
certain subjects were given to the government of India by the instrument of accession, the state had its
own power to legislate even on those subjects as long as it does not go against the central legislature.

So in all the government of Jammu & Kashmir did not accept the newly made Indian constitution as a
constitution for itself, even after becoming a part of India the state is governed by the Jammu & Kashmir
Constitution Act 1939. An interim arrangement was made for this state in the constitution of India, article
306-A was introduced and then formally added to the constitution of India as article 370.

History behind Article 370

After the lapse of British paramount, the State of Jammu and Kashmir became independent; it
was free to accede to either of the Dominions, India and Pakistan, by signing an Instrument of
Accession. Maharaja Hari Singh, the then ruler of Jammu and Kashmir acceded to the Dominion
of India by signing an Instrument of Accession on 26th October, 1947. Thus, the accession of
Jammu and Kashmir was final, irrevocable and perfectly legal and thus Jammu and Kashmir
Became an integral part of India. It may also be noted that between 15th August 1947 when the
State of Jammu and Kashmir became sovereign upon the lapse of paramount and 26th October
1947 when Maharaja Hari Singh signed the Instrument of Accession, so called Azad Kashmir
Forces with the support of Pakistan had attacked Kashmir with a view to force the Maharaja to
accede to Pakistan. The Maharaja was obliged to seek military help from India to defend the
territory of his State. After he signed the Instrument of Accession, India acquired jurisdiction
over the State and repelled the attack.2

Keeping in view the circumstances in which the State acceded to India, the Government of India
assured the people of the State that an elected Constituent Assembly will frame a Constitution
for the State and will determine the nature and extent of application of other provisions of the
Indian Constitution over the State. Article 370 only incorporates these assurances. Thus, at the
Commencement of the Constitution only two Articles namely Article 1 and Article 370 applied
to the State. The application of other Articles to the State would be determined by the President
in consultation with the State Government. The President issued the Constitution (Application to
Jammu and Kashmir) Order, 1950 in consultation with Government of the State of Jammu and
Kashmir, specifying the matters with which the Union Parliament may legislate for the State.

2
http://darpanonline.org/web-photo/10_41.pdf

3
Thus, while remaining within the framework of Indian Constitution the Kashmir State virtually
attained an autonomous status not enjoyed by any other state of the Republic of India. However,
the Constitution-makers envisaged the day when the need of the temporary provision would end
and the Article 370 abrogated. But this step was to be taken not at the behests of any extraneous
authority, not even at the demand of the Indian public opinion, however united or strong on the
subject, but at the express wish of the people of Jammu and Kashmir

Kashmir - nature’s heritage, a sanctuary that has enchanted humans and been celebrated by
mankind for its scenic class. It is a land which used to be an important center of Hinduism and
later for Buddhism. It also has deep roots and recognition in the womb of golden history of
Mahabharata. According to folk etymology, the name Kashmir means Desiccated land (from
Sanskrit, Ka= Water and Shimeera= desiccate).3

Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous
status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with
"Temporary, Transitional and Special provisions",4 the state of Jammu & Kashmir has been
accorded special status under Article 370. This means that all the provisions of the Constitution
which are applicable to other states are not applicable to J&K. 5 Thus the State’s residents live
under a separate set of laws, including those related to citizenship, ownership of property, and
fundamental rights, as compared to other Indians.6

370. Temporary provisions with respect to the State of Jammu and Kashmir.

1. Notwithstanding anything contained in this Constitution,—

(a) The provisions of article 238 shall not apply now 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

3
http://en.wikipedia.org/wiki/Kashmir History of Kashmir
4
http://www.ikashmir.net/history/index.html
5
http://timesofindia.indiatimes.com/india/What-is-Article-370-Three-key-points/articleshow/35678708.cms
6
http://shobhananair.com/?p=801

4
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 recognized by the President on the recommendation of the Legislative Assembly
of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice
of the Council of Ministers of the State for the time being in office.

(c) The provisions of article 1 and of this article shall apply in relation to that 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:

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:

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 that 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 the second proviso to sub-clause (d) of that clause be given before the
Constituent Assembly for the purpose of framing the Constitution of the 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 this 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 notification7

7
http://en.wikipedia.org/wiki/Article_370

5
As written in Article 1 of the Constitution of Jammu and Kashmir which states that the State of
Jammu and Kashmir is and shall be an integral part of the Union of India. Article 5 states that the
executive and legislative power of the State does not extend to matters except those with respect
to which Parliament has power to make laws for the State under the provisions of the
Constitution of India. These provisions cannot be amended. The constitution was adopted and
enacted on 17 November 1950.8

Discussion

The constitution of India came into force on 26 January, 1950 and from then onwards the state,
Jammu and Kashmir enjoys a special status if compared with the other states of India. It is
Article 370 (article 306 A in the draft) of the constitution of India which provides special and
autonomous status to the state of Jammu and Kashmir. Article 370 is drafted in amendment of
the Constitution section, in Part XXI, under Temporary and Transitional Provisions. It is article
370 which provides a constitutional link between India and the state of Jammu and Kashmir. The
parliament is said to be the law maker in India but in the matter related to Jammu and Kashmir,
the parliament has to take approval from the state while passing any law, ordinance or an act
except in the matters related to Foreign Affairs, Defense, communication and ancillary. Because
there’s separate law regarding ownership of property, citizenship etc. as compared to the other
Indian States i.e. why a person from other state cannot buy any property in the state of Jammu
and Kashmir.
Financial Emergency under article 360 can never be imposed in the state of Jammu and Kashmir
by the Centre under article 370. War or external aggression is the only situation in which the
Centre can declare emergency in the state of Jammu and Kashmir. This means that the union
cannot declare emergency in the state if there’s any internal disturbance but can declare
emergency if there’s any imminent danger with the request made to the running state
government.

Article370 provides 6 provisions to the state of Jammu and Kashmir:

8
http://darpanonline.org/web-photo/10_41.pdf

6
 1. The state is exempted from any other laws of the constitution provided for the
governance of the states.
2. The Parliament’s legislative power over the state of Jammu and Kashmir is subjected to
three subjects- external affairs, defense and communications.
3. If the Centre wants to extend other constitutional provisions or union powers in the state,
Centre has to take the prior concurrence of the state of Jammu and Kashmir.
4. The concurrence received has to be ratified by the State’s Constituent Assembly.
5. The authority of the state government to give concurrence lasts only when the state’s
constituent assembly is convened.
6. Only the President is empowered to make an order amending or abrogating it.
Amendment under 368 would be applicable only when it is applied by the order of the
President

Loopholes in the Article 370:

1. In article370 (3) the President may by notification declare that this article shall cease to
be operative, but the article also clearly points out that the president has to acquire the
assent of the state’s constituent assembly before passing such notification. It is not a
matter of concern that the constituent assembly of Jammu and Kashmir can never give
assent to such notification. In that view Parliament cannot exercise its power given in the
article 368 to amend or withdraw the article 370 of the constitution.
2. Article 368 of the constitution also limits the power of the Parliament to make any
amendment to the provisions listed in the constitution which can result in the change in
any of the lists in the seventh schedule, and that amendment has to be ratified by the
legislature having majority not less than that of half of the states.
3. India has a system of single citizenship but the residents of Jammu and Kashmir enjoy
dual citizenship which completely violates Citizenship Act.
4. Majority of Indian laws are not applicable in the state of Jammu and Kashmir. RTI,
CAG, RTE are example of the same.
5. It grants Jammu and Kashmir to have a constitution of its own.
6. Centre has to take the concurrence of state’s constituent assembly before passing any law
or act in the state.

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 7. The boundary of the state and name cannot be altered as it can be altered in rest states of
India.
8. In Article 370(3) it is provided that the article can only be changed or removed by the
recommendation given by the state’s constituent assembly.

Why article 370 was incorporated, can article 370 be abrogated?

First, why it was incorporated in a constituent assembly on October 17, 1949, great thinker and
poet, Maulana Hasrat Mohini asked: “why this discrimination please?” by this statement he
meant why to treat Jammu and Kashmir as a special state and why to provide it special
provisions and not the other states of the union of India. When it is already stated in the Article 1
that India, that is Bharat, shall be a union of States then there’s no need to treat Jammu and
Kashmir as a separate state as it would create discrimination and which would be
unconstitutional. Answer to this question was given by Jawaharlal Nehru’s second half
Gopalswami Ayyangar. He argued that Kashmir unlike any other princely states was not yet
fully developed for unification. India at that time was at war with Pakistan on the matter of
Jammu and Kashmir and the conditions were still abnormal and unusual because of the ceasefire
and most of the part of the territory was in the hands of the rebellions and enemies. International
light on the matter of Jammu and Kashmir has been brought up by the UN and its involvement
would end only when the problem of Jammu and Kashmir is resolved satisfactorily.
Second, can article 370 be abrogated? This has been a very debatable question. In general, the
narratives of the Indians are that, Jammu and Kashmir has always been the integral part of India
that’s why it does not make any sense in providing further special status to the state. Jammu and
Kashmir should also be acceded and integrated when thousands of other princely state had? Why
is it that the Kashmir needs special status?

But the major concern that has to be kept in mind is whether article 370 has alienated the people
living in the state of Jammu and Kashmir and whether the article 370 has benefitted the state
socially and economically?
From a Kashmiri’s point of view, they were forced to marry the person they do not desire and the
separatist desire to divorce or annul this marriage. The others pointed out that the marriage was a

8
marriage of convenience and they need to the terms and conditions laid down prior to the
marriage in order to remain married.
Overall, there’s a lack of trust between the two parties to have a genuine discussion over the
cause. And in certain cases India has been different to the people of Jammu and Kashmir. It has
failed to take measures for political and social integration and at times to crack the whip with
clever politics, and in certain extreme cases, even force. Not taking proper action against the
excessive measures taken by the AFSPA has created a deep rooted sense of segregation and
alienation in the mind of the people living in the state of Jammu and Kashmir. People of Jammu
and Kashmir also need to realize that India as a whole does not holds any ill will towards the
people of Jammu and Kashmir and they are also a part of India as are the people of other states. I
believe we would be able to solve the issues if we try to address these concerns proactively so
that Article 370 becomes absolutely irrelevant.
One of the major problem in the revocation of this article is in point 3 of the article 370
Point 3 in the article 370 states: -
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.

Looking at this we can say that there is a conundrum in removing this article as it itself states
(notwithstanding anything else in the constitution) that it cannot be revoked without the recommendation
of the constituent assembly of the state which as of now does not exist.

Landmark Judgments:

1. Prem Nath Kaul v.State of Jammu and Kashmir, 1959 AIR 749
It is one of the leading and earliest cases regarding the impact of article 370 which was to
be decided by the honorable Supreme Court. Supreme Court in this case traced the
passing of power from the hands of Maharaja Hari Singh to the successor. The court held

9
 that the power of Maharaja in no way are reduced and nor the court is trying to impose
the President’s will on the state but it wanted to establish the relationship that the state
would like to have with India by giving powers that are vested in the state’s constituent
assembly. It also checked that the longevity of the exercise of powers conferred on the
Parliament and the President by the relevant temporary provision of Article 370 made
tentative on the final approval by the said Constituent Assembly in the said matters.
2. Sampat Prakash v. State of Jammu and Kashmir, 1969 AIR 1153, 1969 SCR(3) 574
The article 35(c) of the constitution of Jammu and Kashmir, Constitution order, 1954,
had given protection to any law relating to preventive detention in the state against
invalidity on the ground of violation of Fundamental Rights as guaranteed by the
Constitution in part III for a period of 5 years.
But in 1959 the period was extended to ten years and in 1964 it was extended to fifteen
years by the Presidential Orders. Hence, the issue was raised on this fact of extending the
period from five to ten then to fifteen years contending that it is violating Article 370(1)
and president cannot exercise this power. Article 370 could only have been effective
when until the constitution of Jammu and Kashmir was framed and after that it must be
held to become ineffective to become ineffective that any modification made by the
president subsequent to the enforcement of the constitution would be without the
authority of law. Supreme Court rejected the argument by stating, because the situatihad
existed when article 370 was incorporated in the constitution and is hardly altered hence
it will continue to remain in force and the motto of introducing this article was to provide
power to the president so that he can exercise his discretion in applying the constitution
and in reference to article 368 the amendment under article 368 would not apply to the
state of Jammu and Kashmir unless it is exercised by the President of India under Article
370 (1).

Breach of Article 370:

10
 1. Ajay Kumar Pandey v. State of Jammu and Kashmir 19 July, 2016.
SC in this case allowed the petition of transfer of a criminal case from the state of Jammu
and Kashmir to the other state wherein the former judges pointed out that under law have
no such power to transfer cases from Jammu and Kashmir to the courts outside state.
Former Delhi High Court Chief Justice Rajinder Sachar pointed out that SC has no such
power to do so because the power to transfer the case from one state to another as
provided in Section 25 of the Code of Civil Procedure and Section 406 of the Code of
Criminal Procedure does not extend to the state of Jammu and Kashmir, nor do the
Kashmir Code of Civil Procedure, 1977 contains such provision which is clearly a
violation of Article 370. He further added that bench ruling in this case has nullified the
mandatory provision of Article 370 particularly when the legislatures of Jammu and
Kashmir has specifically provided that no court shall have the power to transfer case from
Jammu and Kashmir to the other.
“Article 370 in the Constitution is an article of faith and as such the autonomy of Jammu
and Kashmir under it should not be trifled with” – Justice Rajinder Sachar.

Why such a controversy regarding this:

The controversy these days regarding this article is on the aspect of revoking this article, firstly
if this article is revoked then it will bring the state of Jammu & Kashmir at par with the other
states as some people think that being a part of the union of India this state must also be same as
other states, why provide special status! let us look at the changes that will be brought to this
state if this article is revoked: -
1) The dual citizenship given to the people of this state will be removed.
2) The state will have to abandon their flag and accept Indian flag.
3) They will have to respect national flag and national symbols, as currently its not a crime
in Kashmir if we insult Indian flag or symbols.
4) Orders of supreme court will be valid in this state as currently they are nt.
5) Parliament of India will be able to make laws regarding more subjects as compared to
now on only three (Defence, external affairs, communication).
6) Right to information and right to education will start to be applicable.

11
 7) Comptroller and auditor general(CAG) will start to apply.
8) Shariat law will be revoked.
9) Outsiders will be able to own property in Kashmir.
10) Panchayats have no authority in Jammu & Kashmir.
The right wing of the Indian politics like Hindu rightist: bhartiya Janata party and organisations
like VHP, RSS have been demanding to abrogate this article, these people give reasons like
national integration with a slogan “One Nation, One Citizenship, they say by integrating to the
union of India it will enjoy better fruits of development, a lot things would be taken care of like
insurgencies, and terrorist attacks.
Whereas the people supporting this article particularly the local parties of Jammu and Kashmir
give reasons like that scrapping this article will lead to the exploitation of the J&K people and
they ask for greater autonomy must be provided to them.
N

Against article 370

1) The state will be benefitted by the central government schemes, especially for the
underprivileged people.
2) Infrastructure of the state would be improved, employment would be generated because
of the schemes like MNREGA, better public distribution system through schemes like
direct cash transfer.
3) Development because of the investment that would be generated because of the peaceful
environment.
4) Growth and prosperity will lead to decreased incidents related to militancy.
5) A lot of abundant natural resources can be explored.
6) Also the points stated above that what changes will come

THE IMPLICATIONS OF ARTICLE 370

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There has been a wave of revolutionary ideas among the youth and the intellectuals of the State
in the past few years. The abrogation of section 370 is the new slogan with the argument that the
provision feeds secessionist demands and has retarded growth in the State. Now the implications
of the clauses and sub-clauses of this Article need to be analyzed and comprehended to gain a
perspective on the role that J&K‟s special status has played in its social, economic and political
development.9

The foremost implication of this Article is the legislative exception that it bestows upon the State
of J&K. There are a number of legislations that do not apply to the State since consultation with
the State Government failed or there was no concurrence. The Indian Penal Code, 1860, arguably
the most comprehensive legislation on criminal law in India, also adopted by Burma, Sri Lanka,
Malaysia, Singapore and Brunei operates in the entire territory of the Union of India except the
J&K. The Prevention of Corruption Act, 1988 the most effective contemporary statute under
which corrupt politicians and government employees are brought to book for their offences is not
applicable to J&K. The applicability of the Religious Institutions (Prevention of Misuse) Act,
1988, under which religious institutions are prohibited from permitting the promotion of any
political activity or the storing of arms and ammunitions on its premises, does not extend to J&K.
J&K is exempted from the application of the Delhi Special Police Establishment Act, 1946, the
source of the establishment and powers of the Central Bureau of Investigation, the premier
criminal investigative body of the country.10 Then, there are numerous legislations that are
applicable to the State, but have been enforced in J&K in a modified form. Certain statutes have
thus, been applied in a limited manner, defeating their basic objectives. The Commissions of
Inquiry Act, 1952, which empowers the Central Government to set up an inquiry commission to
look into any irregularity of public importance, is applicable to J&K, but 61 subjects in the State
List, including prisons, hospitals and water supply, are exempted from its application. Again, the
Protection of Human Rights Act, 1993 is excluded from its application with respect to the
subjects enumerated in the State List. The application of the Unlawful Activities (Prevention)
Act, 1967 does not include within its ambit sections 153-A and 153-B of the Indian Penal Code,
which are concerned with promoting enmity between different groups on grounds of religion,
race, place of birth, residence, language, etc. and imputations, assertions prejudicial to national

9
http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf
10
http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf

13
integration respectively. Hence, this aspect of Article 370 indicates the degree of legal
integration of the State with the rest of the country.

Then there are certain constitutional provisions that do not apply to the State of J&K or are
applicable in a limited manner, as per the order of the President. The Constitution of India
provides a framework for the functioning of country, with its varied provisions on the
fundamental rights of citizens to the office of the President. It is the most honored Code of the
country and the longest written Constitution in the world. However, the State of J&K does not
fall entirely under the ambit of this book of provisions. Article 31C, the provision that prohibits
challenge on certain grounds to a law passed to effect any Directive Principle of State Policy, has
been declared to be not applicable to J&K, and as a result any Central law on the Uniform Civil
faces the possibility of being deemed invalid in the state. Article 172 which fixed the term of the
State Legislatures as five years is not applicable to J&K, whose Constitution specifies the term as
six years at variance with the rest of the country. Excluding the application of Article 360, the
provision dealing with the proclamation of a Financial Emergency, takes away the power of the
Central Government to give directions to the State of J&K for maintaining financial propriety.
Article 365, had it not been declared to be inapplicable, would have empowered the President to
hold the refusal of the State of J&K to follow a direction of the Central Government as
misdemeanor. Then there are certain Constitutional provisions that operate in J&K, albeit in a
modified form. The Supreme Court of India in its landmark judgment of Keshavananda Bharati
v. State of Kerala15 held that the Preamble is a part of the basic structure of the Constitution.
The word ‘secular’ was added to it by the 42nd Amendment in 1976, but it was meant to be
omitted from application to J&K.

Another anomaly is that the voting right based on adult suffrage is guaranteed to every Indian
citizen resident in J&K for election to the Lok Sabha, while the adult suffrage applies to only
‘permanent citizens’ of J&K for its State Legislative Assembly election as per their constitution.
A very important consequence of Article 370 has been the isolation of the people of J&K from
the rest of the country. Every state is said to be an integral part of the nation, but J&K

with its separate Constitution challenges the very significance of this statement. The entire
population of the state has been bereaved of the economic development that the rest of the
country has achieved. Private industries cannot transfer land in their own name and hence, the

14
state has seen no industrialization, while rapid urbanization and the mushrooming of factories in
other states has provided employment and raised the standard of living. Financial legislations
have constantly been prevented from being introduced in the state with the assistance of the farce
called Article 370 and has prevented the concepts of gift tax, urban land ceiling, wealth tax etc.
from making the powerful accountable to the people of the state, thus broadening the divide
between the rich and the poor. Since no land can be owned by people who are not permanent
residents of the state, the power elite who are the only ones with the capacity to invest in
immovable property have cornered the land resources.

The abuse of Article 370 is perhaps the main reason why it should be abrogated, with the abuse
leading to hopeless governance and breakdown of the social machinery. The immunity given to
the J&K State from a number of Parliamentary laws operating in the rest of the country has been
misused greatly by the powerful to deny citizens their rights. On 21st June, 2003, Mohan Lal, a
rikshaw puller, became a victim of custodial death. The responsibility for his torture and murder
was sought to be avoided by the State by seeking immunity from the Protection of Human Rights
Act, 1993. However, the National Human Rights Commission in a commendable order set aside
the immunity and directed the J&K Government to pay Rs. 5 lakhs to the deceased’s mother for
the police atrocity.11

However, there are various other evidences of such misuse of immunity that have not been
redressed. India follows the Juvenile Justice (Care and Protection of Children) Act, 2000, but the
State of J&K refuses to extend the applicability of this statute, while its juvenile justice system is
still governed by the antiquated Jammu and Kashmir Juvenile Justice Act, 1997, thereby
preventing the operation of the Ministry of Women and Child Development of the Government
of India in the state for formulation and implementation of uniform child protection
programmers as required by the UN Convention on the Rights of the Child.24A similar abuse is
evidenced by the Jammu and Kashmir Right to Information Act, 2009 whereby the State
Government is vested with more power as compared to the Central Act of 2005. The Domestic
Violence Act, 2005 does not extend its application to the State of J&K, which has not enacted its
own protective law for women in the domestic sphere.12 J&K has refused to enact laws that

11
http://en.wikipedia.org/wiki/Article_370
12
http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf,

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would extend the applicability of the 73rd and 74th Amendments to the Constitution that provide
for reservation of seats for women in the Panchayats, thus preventing the women in the state
from asserting the right that has become fundamental to the concept of Panchayati Raj all over
the country. Another apparent abuse is the denial of state citizenship to the thousands of minority
Sikhs and Hindus who migrated from Pakistan in 1947 by quoting Section 6 of the Jammu &
Kashmir State Constitution that seems to have set in stone the definition of permanent resident.
These are not isolated examples. Cumulatively, these create the shape of a phenomenon in J&K
– a phenomenon of human rights abuse under the garb of validity bestowed upon it by article
370.

Abrogation of Article 370 in J&K

Democracy is always by the people, for the people and of the people.
The democracy came into existence with the Centre’s decision to
bifurcate J&K, reorganize the state and abrogate Articles 370 and
35A.The much-anticipated move that involved strategic application and
political forethought which have been executed immaculately knowing
the implications could travel beyond the geographical borders and
trigger seismic waves within the country. It appears that the project was
executed so carefully that there was no misstep.
Article 370 and 35 A were responsible to create socio-economic
imbalance in the Kashmir valley. As examples-on marrying a non-
Kashmiri, Kashmiri Muslim women lost their right to get government
jobs, settle in Kashmir or send their children to government schools and
became ineligible for a permanent resident certificate (PRC). Article
35A also denied basic right to life to the families, who migrated from
west Pakistan.They have been living as refugees for the past 60 years.

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This acute discrimination violated the spirit of the Constitution, and was
also a threat to unity and integrity of people.
Now constitutional changes have been effected, the state of Jammu and
Kashmir will come up as two separate Union Territories- Jammu &
Kashmir and Ladakh. J&K now needs a fresh social-emotional
construct. With the restrictions removed, the tourism potential of the
state will be fully realized with investment in tourist infrastructure and
hotels that will create more jobs. Not only in tourism but also
investments will be allowed in sectors like education, healthcare which
eventually would bring economic boom in the region.
In a nut shell, Jammu and Kashmir (Reorganisation) Bill,2019 ensures
that Jammu and Kashmir enter Indian mainstream and becomes the part
of India’s collective growth.

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Bibliography

Books.

1. Bazaz, Prem Nath. (1978). Democracy through Intimidation and Terror: The
Untold Story of Kashmir Politics. New Delhi: Heritage Publishers

2. Edited by Gopal S. (1998), Selected works of Jawaharlal Nehru, Second Series,

Vol. 19, Northamptonshire: Oxford University Press.

Articles

1. http://www.ilnuejournal.org/pdf/article/Implications%20of%20Article%20370.pdf

2. http://www.publishyourarticles.net/knowledge-hub/essay/an-essay-on-article-370-
and-special-status-of-jammu-and-kashmir.html

3. http://en.wikipedia.org/wiki/Article_370

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