S.S.

JAIN SUBODH LAW COLLEGE

MANSAROVAR, JAIPUR

SESSION: 2019-2020
TOPIC: ABROGATION OF ARTICLE 370
& IT’S CCONSEQUENCES
SUBJECT: POLITICAL SCIENCE
Submitted to: Submitted by:
Ms. Anju Gupta Rishi Tripathi
Assistant Professor Semester- I
(Political Science)
DECLARATION
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I do hereby that this research title “ABROGATION OF ARTICLE 370 & IT’S
CONSEQUENCES” is outcome of the research conducted by me under the guidance of Ms.
ANJU GUPTA (Assistant professor of Political Science) at S.S. Jain Subodh Law College in
fulfillment for the award of degree of B.A. L.L.B at the University of Rajasthan.

I also declare that this work is original except where assistance from other source has been taken
and necessary acknowledgement for the same has been made at appropriate places. Further,
declares that this work has not been submitted either in whole or in part for any degree or
equivalent in any other institution.

RISHI TRIPATHI

CERTIFICATE

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This is to certify that RISHI TRIPATHI, student of B.A. L.L.B., 1st Semesterof S.S. JAIN
SUBODH LAW COLLEGE, MANSAROVAR, JAIPUR has completed the Political Science
project for the semester on “ABROGATION OF ARTICLE 370 & IT’S CONSEQUENCES”
under the guidance of Ms. ANJU GUPTA, Faculty for Law of Torts in S.S. Jain Subodh Law
College.

Ms. ANJU GUPTA

Assistant Professor

ACKNOWLEDGEMENT

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I express my sincere thanks to my project guide Ms. ANJU GUPTA, Assistant Professor,
Political Science for guiding me right from the inception till the successful completion of the
project.

I sincerely acknowledgement her for extending their valuable support for literate critical reviews
of project and the report and above all the moral she had provided to me with all stages of this
project .

RISHI TRIPATHI

1st Semester

INDEX

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1. Introduction 6

2. A review of article 370 7

3. Changes with scrapping of Article 370 10

4. Removal of Article 370: International point of view 12

5. Conclusion 13

6. Bibliography 14

INTRODUCTION
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Jammu & Kashmir was always in the interest of India. The state consists of three regions Jammu,
Kashmir, and Ladakh. This place is known for its natural beauty and scenic attractions and has
been the favourite holiday destination to many people in the world. Besides, this state is the only
producer of almonds and saffron in the country. The state also runs a monopoly over Walnuts,
Cherry and apricots. How can anyone forget apples? Apples from this state are the most in-demand
in the markets all over the world. With this backdrop, it is no wonder; it is called the Heaven on
earth.

India and Jammu & Kashmir have always had a strained and weird relationship with Maharaja
Hari Singh reluctant to accede to India and remaining a neutral party, but with Pakistan’s attempt
to take over J & K, an instrument of accession was undertaken and J and K became an integral
part of the Indian territory. In 1954, the Presidential Order was passed which brought into
existence Article (hereinafter referred to as “Art.”) 370 which gave special status to the state for
the temporary time being.

There have been various attempts after that to abrogate the provision and integrate J & K with
India but they have mostly failed because of lack of majority in Parliament and then the Supreme
Court in 2017 declared how this provision has become permanent with the course of time1.

As a step to access this heaven on earth, Union Home Minister of India, Amit Shah on 5th august,
2019 proposed the scrapping of Article 370 of the constitution. The centre also brought in the
Jammu & Kashmir Reorganization Bill in Parliament. Union Home Minister, Amit Shah also
proposed the bifurcation of the state into two union territories. Though this proposal was
welcoming to the Indian Citizens, it was not welcomed by the political leaders of the Jammu &
Kashmir.

1
https://www.lawctopus.com/abrogation-of-article-370-need-or-want/
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 A Review of Article 370

The process of Constitutional integration of J&K state is a gradual and consistent process. It had
received many milestone modifications and still, many are left to be received. Although the State
of Jammu and Kashmir has its own Constitution the application of the Indian Constitution is being
extended gradually. With J&K’s accession to India in 1947, it became necessary to define the
constitutional relationship. This was done by the adoption of Article 370 in the Indian Constitution.
It defines the mechanism for managing center-state relations with specific reference to J&K.
Article 1 and the First Schedule of the Constitution governs the state’s integration.

First Schedule of Indian Constitution enlists J&K in the list of states and defines that “the
territory which immediately before the commencement of this constitution was comprised in the
Indian State of Jammu and Kashmir” is the integrated part of Indian Union.

Article 370 is embodied under chapter XXI labeled as, ‘Temporary provisions with respect to
the State of Jammu and Kashmir’. The prelude of this section i.e. “Notwithstanding anything in
this constitution” is seldom used in the Constitution. This indicates that regardless of any other
provision this section will be applied independently i.e. does not require any support from any
other provisions for its enforceability2.

Clause (a) provides that “the provision of article 238 shall not apply in relation to the State of
Jammu and Kashmir. All the princely States that had acceded to the Indian Dominion were labeled
as Part ‘B’ States in the Constitution of India. Jammu & Kashmir State was thus also a Part ‘B’
State. However, while all the princely States had accepted the Constitution of India, Jammu &
Kashmir had reserved the right to frame its own Constitution.

Since Article 238 was meant to govern the constitutional relationship between the Union and the
princely States, it could not be applied to Jammu & Kashmir State. Furthermore, Article 238 was
deleted by the Constitution (Seventh Amendment) Act, 1956, when the scheme of reorganization
of all States on the basis of language involved not only changes in boundaries of several of the
existing States but also the abolition of the classification of the Part ‘B’ States.

2
Dr. J. N. Pandey, ”Constitutional Law of India”, Central Law Agency, pg 809.
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Article 370 1(b) (i) and 1(b) (ii) limits the power of the Parliament to make laws for J&K. It
extends to only “those matters in the Union List and the Concurrent List which, in the 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 Indian Union.

(1)(c) provide that provisions of article 1 and of this article shall apply in relation to that State and
hence making J&K as an integral part of India.

(1)(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.

Clause (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.

The interpretation sought to be placed was that Under Art. 370(1) (d), the power of the President
is expressed by laying down that provisions of the Constitution, other than Article (1) and Article
370 which, under Art. 370(1) (c), became applicable when the Constitution came into force, shall
apply in relation to the State of Jammu & Kashmir subject to such exceptions and modifications
as the President may by order specify.

The Supreme Court held in 1984 that J&K “holds a special position in the constitutional set up of
our country”. It was thus that “the basis for a constitutional relationship between the Union and
State was defined”. In 1962 the responsibility for holding elections in the state was transferred
from the State election machinery to the Central Election Commission.

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J&K is the most autonomous state in the country. Applicability of Certain paramount central
statutes, which are Indian Penal Code 1860, The Prevention of Corruption Act, 1988, The
Religious Institutions (Prevention of Misuse) Act, 1988, The Delhi Special Police Establishment
Act, 1946, The Commissions of Inquiry Act, The Protection of Human Rights Act, 1993 The
Unlawful Activities (Prevention) Act, 1967, The Representation of the People Act, 1950 and
1951, is not extended to the state of J&K.

Apart from the constitutional and legal provisions, as enumerated elsewhere, the autonomy
arrangements are entrenched through the various democratic institutions of the State. Public
opinion has asserted time and again to persuade the Government of India to enter into Agreements
with the popular leadership in the State. The Supreme Court of India is the final arbiter of any
dispute between the state and the union government about the autonomy arrangements made under
the provisions of the Indian constitution.

This article also says that extending the central law on subjects included in the Instrument of
Accession requires mere consultation from the state government. This also states that the state
can have its own flag and constitution. This article also mentions about the termination of this
article by the President of India by the issue of public notification. This is given in clause (3).
This is a temporary article which can be ceased from operation.

As J&K is the most autonomous state of the Indian Union because of which the state’s residents
lived under a separate set of laws, including those related to citizenship, ownership of property,
and fundamental rights, as compared to other Indians. There are incidences when injustice was
conducted to the minority population of J&k. Many laws were made which even infringes their
human rights. No law of India can be extended to J&K by virtue of Article 370 unless the J&K
government extends it by an Act of the State Legislature. J&K is still ruled by its Juvenile Justice
Act of 1997. And the Ministry of Women and Child Development of the Government of India
cannot implement child protection programmes as required by the UN Convention on the Rights
of the Child, simply because J&K refuses to even implement the 1997 instance of the attempt of
bringing the chaos in order3.

3
https://www.lawctopus.com/academike/constitutional-intergration-jammu-kashmir/
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 CHANGES WITH SCRAPPING OF ARTICLE 370

This article made Jammu & Kashmir near-autonomous. Now revoking of this article will make
Jammu &Kashmir ordinary from extraordinary. Which means all the laws which were exempted
for it will be applicable as per Constitution (application to Jammu and Kashmir) order, 2019.
Which means the state is now allowed to declare emergency in the state. J&K assembly will not
be able to clear any bills within the state. The aspects which are affected by the repealing of
Article 370 are observed below

❖Constitution of Jammu and Kashmir:

As for a fact, we know about the separate constitution for Jammu and Kashmir, but with the
scrapping of article 370, it will no longer have a separate constitution. It has to abide by the
supreme law of India, Constitution of India.
❖ Citizenship to its people:
Article 370 promised dual citizenship to the people of Jammu and Kashmir but after scrapping it,
all the people of J&K will be the Citizens of India only. They will come under the purview of
Indian citizens and will be recognized as the same by the other nations of the world.
❖ Fundamental rights of its citizen:
Prior to the scrapping of the article, the people of J&K did not enjoy all the rights ensured by the
Indian Constitution. It could not enjoy completely due to the special status and dual citizenship
provided to it. This article provided their citizens only with the Rights in accordance with the
state, including property rights and state rights.
But by the scrapping of this article, the people of J&K will be able to enjoy all the Fundamental
rights provided by the Indian Constitution. The infringement of the same can be claimed before
the honourable high courts or Supreme Court of India.

❖ Flag of Jammu and Kashmir:

Hereafter, the privilege of having a separate flag for the state is withdrawn. J&K will be having

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only the Indian Flag and are obliged to respect the National flag of India. And it will be on par
with the entire country.
❖ National anthem:
Jammu and Kashmir have to forego their state Anthem and adopt the National Anthem of India.
And are hereafter demanded to respect and honour the same.
❖ Working of the legislature:
The legislature of the J&K will be no different from the other state legislatures. The Jammu and
Kashmir legislature will no longer be able to clear bills with respect to the state. It can decide
only for the matters discussed in the state list and few in the concurrent list and all the matters
which fall under the ambit of union list will be solely dealt with by the central government.
Hence, matters relating to defence, the security of the nation, atomic energy, foreign affairs,
shipping and navigation, foreign loan, inter-state trade, taxes on Income etc., all of these will be
under the hands of the central government.

❖ Application of Indian laws:

Earlier, only state laws were applicable to the state of Jammu and Kashmir but not now. All the
central laws will be applicable to this state. A total of 106 Central laws will be applicable, says
Union Home Minister, Amit Shah.
Also earlier, except for defence, foreign affairs finance and communications, Parliament needed
the state government’s approval but with the removal of article 370, the parliament need not ask
state’s approval for applying laws and is also at liberty to change state’s name and its boundaries.

❖ Geographical changes:
Jammu and Kashmir which was a state of India with the exclusive special provision with Ladakh
being part of it is now bifurcated as two union territories with J&K as one and Ladakh as
another. Where J&K is a union territory with legislature and Ladakh is the one without
legislature.
❖ Ownership of property:
Before, only the citizens of Jammu and Kashmir were able to buy and sell property in Jammu
and Kashmir, but now the property of Jammu and Kashmir will not be restricted only to J&K
citizens but also is extended to all the citizens of India.

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 REMOVAL OF ARTICLE 370: INTERNATIONAL POINT OF VIEW

When it comes to the International point of view, there are mixed responses from the other nations
of the world. Apart from Pakistan, China made a comment on this abrogation. China called the
decision of India in J&K matter as “unacceptable and void”. The Chinese Foreign Ministry
supported their statement by saying that scrapping of article 370 and creating a separate Union
Territory would affect China’s territorial integrity and sovereignty.

However, India strongly reacted by reminding China, that India has never interfered with the
internal matters of China and also reminded them that the decision taken by India on article 370 is
an ‘internal’ one.

Whereas Russia, being a constant supporter of India, has backed India’s move in this matter.
Russian Ministry of Foreign Affairs said that “we proceed from that the changes associated with
the change in the status of the state of Jammu and Kashmir and its division into two union
territories is carried out within the framework of the Constitution of the Republic of India.”. And
also, the US, the UAE, and Sri Lanka seemed to be backing India’s move in Kashmir matter.
Hence, on the International front, there is support coming from many nations.

Pakistan made fervent appeal to international community including the US to put pressure on India
to reverse its decision to abrogate special status to Jammu and Kashmir. But the US, that has
reversed its policy of chastising Pakistan that President Donald Trump began after assuming power
three years ago in return for bringing Taliban to negotiating table, has played neutral over the
matter. Responding to the development in Jammu and Kashmir and Pakistan's complaint, US State
Department spokesperson Morgan Ortagus said there was no change in the country's policy on
Kashmir. The US called for restraint and appealed to both India and Pakistan to maintain calm in
the region.

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The US policy on Kashmir has been consistent - in spite of bloopers from Donald Trump - that
Kashmir is a bilateral issue between India and Pakistan4.

CONCLUSION

This historic action by the Indian Government is a real brave one. Article 370 was only a
temporary, transitional provision. It was supposed to be in operation only till Jammu and Kashmir
frames its own Constitution but this special status was continued for considerably longer period of
time. This extension was made to establish India’s interest in the region of Jammu and Kashmir.
Evidently, for a place in the interest of two nations, it is obvious for India to take such a step.

India’s this move to scrap article 370 doesn’t seem to be a bad one. There have been many laws
which could be implemented in Kashmir to punish wrongdoers and make it a violence-free place
to live. In reference to all the terror activities in Jammu and Kashmir, it can be protected more
effectively with more strong Indian laws.

Only if it comes into the country’s actual territory it can enjoy rights and liabilities granted
generously by the constitution of India. Though there are many reasons to support this move, what
went little disturbing is the way the government wanted to enforce it. House arrest of political
leaders in J&K and disconnecting people by blocking the internet, all this seemed as if the
government wanted to keep in ignorance the people of Jammu and Kashmir.

However, in an address to nation, Prime Minister Modi said that article 370 was a hurdle for
development of Kashmir and informed that Jammu and Kashmir will be under Central
Government’s control and also promised to fill in all the vacant jobs in J&K, it decided to give
financial benefits to the Central employees of J&K and security forces and many more promises
were made in his address to Nation.

4
https://www.indiatoday.in/news-analysis/story/kashmir-pakistan-tries-to-isolate-india-over-article-370-gets-a-
reality-check-1579988-2019-08-12
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Anyways, nothing could explain this situation more accurately than the words of Dr. Ambedkar.
As he said, the good or bad lies in the hands of the implementing authority. With that note, this is
vivid that, the world could now hope to see a prosperous and peaceful Jammu and Kashmir, the
so-called heaven on Earth.

BIBLIOGRAPHY

1. https://www.lawctopus.com/abrogation-of-article-370-need-or-want/.
2. https://www.lawctopus.com/academike/constitutional-intergration-jammu-kashmir/.
3. https://www.indiatoday.in/news-analysis/story/kashmir-pakistan-tries-to-isolate-india-over-
article-370-gets-a-reality-check-1579988-2019-08-12.
4. Dr. J. N. Pandey, “Constitutional Law of India”.

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