Int ernatio nal Journa l of Mult idi sciplina ry Res ea rch a nd Developmen t 2015 ; 2(3): 232-236
IJMRD 2015; 2(3): 232-236
www.allsubjectjournal.com
Impact factor: 3.672
Received: 28-02-2015
Accepted: 15-03-2015
E-ISSN: 2349-4182
P-ISSN: 2349-5979
Nimisha Mishra
Assistant Professor Disha Law
College, Affiliated to Pt. Ravi
Shankar Shukla University,
Raipur, Chattisgarh, India.
Correspondence:
Nimisha Mishra
Assistant Professor Disha Law
College, Affiliated to Pt. Ravi
Shankar Shukla University,
Raipur, Chattisgarh, India.
Need of Article 370 in Present Political Setup in India:
A Critical Study
Nimisha Mishra
Abstract
Since the time of inception of Article 370 in the Constitution of India under Temporary and Transitional
Provisions, its continuation is a big question for those who are against the said article for various reasons.
Kashmir is and was always been a very sensitive issue for India. And the recent debate started by the
State Minister Jitendra Singh wherein he stated that we are asking people for their opinion whether the
article 370 should remain in force or should get abrogated, has again created a great political agitation in
the Country once again. Article 370 was introduced to the Constitution of India after the State of J & K
was acceded to India through an Instrument of Accession on 26th October 1947 for the purpose of giving
protection to the people of Kashmir as Raja Hari Singh asked for it from the Union Government when he
found himself unable to deal with various abnormal conditions of the State prevailing at the time of
Independence. There were frequent cease fire from Pakistan and various religious agitations going on at
that time. Due to all this J & K had been given special status under Article 370. Now after 67 years of
India’s Independence the most important issue is that now the conditions are not same as it was during
independence because of which Kashmir was given special status under Article 370 and the same was put
under the temporary provisions. Also, Article 370 is in question as the it is beneficial only to the rulers of
the State and for subjects it does not seems to be of much significance. The purpose of this paper is to
study various implications of Article 370 and whether it should continue or not.
Keywords: Article 370, Jammu & Kashmir, Human Rights, Instrument of Accession, Corruption.
1. Introduction
Right from its inception article 370 is the most ever debated provision under constitution of
India. To understand why article 370 was introduced in Indian Constitution we have to back to
history and look in the scenario that prevailed after Independence in 1947.After independence
of India on 15th August 1947, Maharaja Hari Singh the then ruler of State of Jammu and
Kashmir, did not showed any interest in becoming part of either India or Pakistan. He wanted
complete independence and was interested in signing a standstill agreement with both India
and Pakistan, so that till he takes the final decision the existing relationship with India and
Pakistan will continue to be the same. However, due to many reasons it could not happen.
Meanwhile, the people of the State realized that people in rest of the India are enjoying their
freedom and rights, so they also started demanding good governance from Raja. Also there
was a lot of pressure from Pakistan on Kashmir to join and become part of Pakistan. As there
was no formal agreement between India and Pakistan it was more likely that Kashmir will
become part of Pakistan. Maharaja Hari Singh Found himself helpless to deal with the same.
Also, Poonchi Muslims revolted against Raja and acquired major parts of area which was
under Raja’s control. Then the inter-religious violence of 1947 contributed even more to
Raja’s helplessness. Even the Raja’s force turned against him. In the absence of any military
help he found himself in trouble and finally on the advice of his Minister Sheik Abdullah
decided to accede to India Following the procedure of accession mentioned in Government of
India Act 1935.He signed the instrument of accession on 26th October 1947 and the same was
accepted by the then Governor General Of India, Lord Mount Batton.
Research Methodology
Research Methodology followed is the ‘Doctrinal Method’. The Doctrinal method used here
is, Case laws study, Statutes, Articles, Reports, Journals, Periodicals, Newspapers of national
agencies.
Introduction of Article 370 in the Indian Constitution
Article 370 was drafted by Maharaja’s former Diwan, Gopalswami Ayyenger. Article 370
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International Journal of Multidisciplinary Research and Development
Provides special status to State of Kashmir, wherein, it was
provided that Article 238 shall not apply in relation to State
of Jammu and Kashmir, except for defense, communication,
foreign affairs and ancillary matters the Indian parliament
requires concurrence with the government of the State for the
application of all other laws.
At the time of its introduction it was asked by Moulana
Hasrat Mohini in the constituent assembly “Why this
discrimination please? The drafter of the Article Gopal
Swami Ayyenger argued that, since the conditions prevailing
in State of Jammu and Kashmir are very different from the
other States in India, as many parts are under the control of
rebels and also Pakistan is in war with India over the issue of
Kashmir, under such circumstances it is not the right time for
complete integration of Kashmir and “the will of the people
Through the instrument of the [J & K] Constituent Assembly
will determine the Constitution of the State as well as the
sphere of Union jurisdiction over the State”[1]
Accordingly, on November 17, 1957, people of J & K
confirmed the accession through their Constituent assembly
and Article 370 was introduced In the Indian Constitution.
Dr. B. R. Ambedkar on Article 370
Dr. B. R. Ambedkar was not very happy with the idea of
introducing Article 370 in the Indian Constitution and giving
such a status to it. He once told to Sheikh Abdulla “you wish
India should protect your borders, she should build roads
in your area, she should supply you food grains and
Kashmir should get equal status as India. But the
government of India should have no rights in Kashmir.
To give consent to this proposal, would be treacherous
thing against the interests of India and I, as the law
Minister of India, will never do it” [2]
Provisions Under Article 370
"Article 370 was introduced under Part XXI UNDER THE
Temporary, Transitional and Special Provisions.
1. Notwithstanding anything in this Constitution anything
in this Constitution:
a. The provisions of article 238 shall not apply in relation
to The State of Jammu and Kashmir.
b. The power of Parliament to make laws for the said State
shall be limited to;
I. Those matters in the Union List and the Concurrent list
which, in consultation with the government of the State,
are declared by the President to correspond to matters
specified in the instrument of Accession governing the
Accession of the State to the Dominion of India as the
matters with respect to which the Dominion Legislature
may make laws for that State; and
II. Those matters 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 as the Maharaja of
Jammu and Kashmir acting on the advice of the council
of Ministers for the time being in office under the
Maharaja’s Proclamation dated the fifth day of March
1948;
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c) The provisions of article 1 and of this article shall apply in
relation to this State;
d) Such of the other provisions of this Constitution shall
apply in relation to that State to such exceptions and
modifications as the President may by order specify.
a. 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:
b. Provided further that no such order which relates to
matters other than those referred to in the last preceding
proviso shall be issued except with the concurrence of
the Government.
2. If the concurrence of the Government of the State
referred to in paragraph (ii) of sub-clause (b) of clause
(1) or in second proviso to sub-clause (d) of that clause
be given before the Constituent Assembly for the
purpose of framing the Constitution of the State is
convened, it shall be placed before such Assembly for
such decision as it may take thereon.
3. Notwithstanding anything in the foregoing provisions of
the article, the President may, by public notification,
declare that this article shall cease to be operative or
shall be operative only with such exceptions and
modifications and from such date as he may notify:
Provided that the recommendation of the Constituent
Assembly of the State referred to in clause (2) shall be
necessary before the President issues such a notification.
4. In exercise of the powers conferred by this article the
President, on the recommendation of the Constituent
Assembly of State of Jammu and Kashmir, declared that,
as from the 17th day of November, 1952, the said article
370 shall be operative with the modification that for
explanation in cl. (1) thereof the following Explanation
is substituted namely.
Explanation—For the purpose of this Article, the
Government of the State means the person for the time
being recognized by the President on the
recommendation of the Legislative Assembly of the
State as the Sadar-I-Riyasat of Jammu and Kashmir,
acting on the advice of Council of Ministers of the State
for the time being in office.” [3]
Reasons Why Article 370 Be Removed
 Temporary and Transition Provision
Article 370 was introduced under temporary and
transition provision, it is but still in existence. So who
will decide what was actually meant by the term
temporary and transition provision.
 Does not fulfill the criteria of Section 5 of the
instrument of accession which says
“The terms of this my instrument of accession shall not
be varied by any amendment of the Act or the Indian
Independence Act, unless such amendments are
accepted by me by instrument supplement to this
instrument” [4].
 
International Journal of Multidisciplinary Research and Development
 Encourages Separationist tendency
As per the article published in Indian republic, Kahmiri
locals do not think of them as part of India and often
asks people coming from different states to Kashmir, if
they have you come from India. This shows that even
the concept of unity in integrity, which is one of the best
attribute of India’s most cherished culture, is losing its
meaning. [5]  Indian citizenship, if he marries a Kashmiri girl. [8] This
 It affects the economic development
As per the provisions of article 370 people from outside
Kashmir cannot invest in Kashmir, they cannot buy any
property or carry on any business. Where rest of the
India enjoys right to move freely and carry on trade in
any part of India thereby developing India as a whole,
Kashmir due to restriction put by Article 370 is closing
doors of development for itself.
 Permitting corruption
As we have CAG, Lokpal, CBI to investigate corruption
issues in other States of India, Kashmir due to article
370 does not come under these anti corruption bodies.
When corruption is on its toll in India it becomes a very
important issue of debate that since the top most
investigation bodies of India does not have its operation
in Kashmir, is Kashmir totally a corruption free State
and does not need such authorities.
 Restricts women rights
According to the article published in F. Politics Dated
Dec 2, 2013, with heading “Sorry Omar, It’s you who
are ill-informed and not only Modi” The writer has
tried to make out clearly the exact status of law on rights
of Women marrying outside Kashmir as far as their
Permanent resident status is concerned. It mentions the
Fact that in a historic case of State of J & K v. Sheela
Shawney The court has struck down the discriminatory
law regarding women’s Permanent Status after marrying
a person who does not belong to Kashmir and held that,”
there is no provision in existing law dealing with the
status of a female Permanent Resident who marries a
non- resident person. The provision of women losing
their status of permanent resident after marrying outside
the State therefore did not have any legal basis”. But the
efforts of PDP Government led by Mehbooba Mufti who
tried to pass a bill named Permanent Resident
(Disqualification) Bill 2004 which says that if a women
marries a person from outside Kashmir will lose her
permanent Resident status and the same was well
supported by Omar Abdulla’s party National
Conference, shows that the government of Jammu and
Kashmir is in favour of such discrimination. [6] Also,
women in Kashmir do not enjoy same property rights as
men. [7] In 21st century when whole world is talking
about women empowerment and her rights, it seems
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Kashmir is still in stone ages, thereby restricting
women’s rights.
 Threat to Indian security
It is well known to all that Pakistan is a great threat to
India due to its deep involvements in terrorism. The
Article also gives Pakistan's citizens entitlement to
is very sensitive issue and needs to be looked upon with
great care and precautions. This way we are welcoming
terrorists thereby making them our son in laws. How can
this be justified when terrorism is not only a national
issue of concern but global as well and more importantly
when Kashmir is the eye of Pakistan right from the time
of Independence.
Chief Minister Omar Abdulla on Article 370.
Chief Minister of Kashmir Shri. Omar Abdulla’s statements
are no less than threats. It is well known to all that law is a
dynamic concept and needs to get changed with the
expectation and need of the time. Then when he makes
statements like, “we the people of J & K would like to
categorically tell BJP that it is not possible to withdraw
Article 370 and any attempt by anyone will be on our dead
bodies”[9] As he says that article 370 forms the basis of
Kashmir’s accession. But a very important fact is that Article
370 is not as it was framed it has been changed so many
times with different Presidential orders only for the benefit of
the State. Now for the benefit of the Sate only if Article is
removed than why Mr. Abdulla is making such statements.
Also, as per the article published in First post, Dated 28th
May 2014, where Mr. Abdulla came up with a new story that
he has got an ancient stone and something is written on it
which means that if Article 370 is abrogated then it is going
to cause earth quake separating Kashmir from India. [10]
Such statements and story does not give a sound footing to
support Article 370. As this is something very unusual.
Kashmir is part of India only for the services mentioned in
the Article otherwise not it seems to be very mean and selfish
attitude. And the relation between manmade article causing
natural phenomena like earthquake is also not digestible and
acceptable.
Again as per the news published in Times of India especially
mentioning the tweet by Mr. Abdulla “Mark my words and
save this tweet – long after the modi Govt. is distant memory
either J & K won’t be part of India or Art 370 will still exist”
which was made by his after The State Minister Mr. Singh
Said that they are open for debate over Article 370, it seems
that Mr. Abdulla is not even ready for an open discussion.
Whereas, if we look at the people’s opinion including
Kasmiri’s on one of the site mapsof india. com with a
heading “What is your opinion –Should the Govt. take a
step to abolish Article 370 or not?” [11]. Almost every
person has given the pinion that Article 370 should be
removed. And Mr. Omar Abdulla seems to give only his
opinion on Article 370 what has he done to get opinion of
each and every person living in J & K. where the voices of
are people it’s only the politicians who are shouting over
Article 370.
Also, the very fact that Article 370 was introduced under
temporary provisions raises a question as to what is the
extent of the temporary status. Also Mr. Arun Jaittely while
 
International Journal of Multidisciplinary Research and Development
opposing article 370 said that it was promised by Mr. Nehru
that it is a temporary provision and it will wither away. [12]
He also said that “Integration of J & K is an essential part
of the ideology of the BJP. Separate status has led
towards separatism and not integration.” [13]
Flaws of Article 370, Making State of Jammu and
Kashmir More Backward.
 “As RTI is not applicable to State of J & k, people are
not only deprived of right to information but also the
procedure to file the complaint. Which means a very
important aspect of Democracy to have a transparent
government is missing from the State. RTI has proved to
be a very important tool to fight corruption, in the
absence of RTI it can be assumed that politicians of J &
K wants to escape from accountability thereby refusing
to abrogate Article 370.
 Also, various welfare schemes for the weaker section of
society in rest of India cannot be made applicable for the
State that too when they exist there. ST and SCs form
total 18% of the population and the same has been
deprived of the safeguards and welfare schemes which
cannot be overlooked. The main reason for acceding to
India was the welfare of people only at the time of
accession Raja Hari Singh in the absence of help from
India or Pakistan was not able to rule of govern the State
properly and people demanded their rights from him,
definitely the Raja never wanted to be the part of
Pakistan then only he decided to became part of India.
Now what is the problem in full integration? Why there
is demand of special status when this provision itself is
responsible for the plight of the weaker section in the
State.
 There is no industrial growth in the State because of
Article 370, if the State becomes a fully integrated State
industrial development will take place there also which
is going to increase employment opportunities in the
State people will get jobs in their own State and will
become more power full and confident.
 As discussed earlier Article 370 is affecting people
psychologically they do not feel themselves as part of
India and if we allow this tendency to develop among
them then it is very much likely to happen that they will
easily get targeted by the militants to form a part of them
and this is happening in the State. Various incidents of
innocent people getting trapped by the militants on
emotional and psychological grounds have also been
noted from time to time.
 Also, no urban land ceiling Act is in force in the State
because of which the rich land lords getting an
opportunity to exploit the weaker sections as there is no
change in their position.
 People in the State are not enjoying various beneficial
laws such as marriages between Kasmiris and people
from rest of India. Thereby affecting their human rights
as well as marriage is a very personal issue and if on
marrying a non Kashmiri a Kashmiri women ceases to
~ 235 ~
be the State subject where she was born and loses her
identity of the State is quite discriminatory as it does not
happen with women from rest of the State in India as
they have only one citizenship that is Indian Citizenship.
 Even the emergency provisions Article 352 and 356 do
not apply to State of Jammu and Kashmir. Under Article
356 where President can declare his rule in any state of
India for Jammu and Kashmir he has to first consult with
the Governor of State who himself is appointed by the
President.
 Anti defection laws does not apply to the state. Also,
even State can refuse for the allotment of land for
defense purposes.
 The minorities like Sikhs and Hindus who migrated
from West Pakistan in 1947 are not recognized as
citizens of Jammu and Kashmir whereas the people who
willingly left Kashmir if they come back they can claim
their property rights under the J & K Resettlement Act
1982.
 Even the very important terminologies like secularism
and socialism are absent from the Preamble of the
Constitution of Jammu and Kashmir.
 Also, it is very depressing to come to know that the State
Govt. in one of the State aid of 20 lakhs granted to one
Vipul Kaul by the then government for the purpose of
curing his multiple disease which was not given to him
after the govt. which guaranteed him the same was
changed and when the home ministry interfered with the
same in order to avail that benefit to Vipul the State
Govt. through a letter dated 24th July 2007 stated “
Under Article 370, the state is under no obligation to
oblige the home ministry’s instructions”. which is quite
evocative of the fact that how Article 370 is becoming a
barrier in the well fare of the State people. Now ask
Vipul’s family being from the State of J & k whether
they favour Article 370 or not”.[14]
Suggestions
In the light of above instances I would like to suggest total
integration of J & K with India. As it is the crown of India no
matter who says what about Kashmir not being part of India
and making fake stories regarding the same, Kashmir was
always a part of India. Also, the situations that prevailed at
the time of Independence does not exist now and we should
not ignore the fact that besides Constitutional rights people
do posses human rights, by the reason of birth as human
beings and hence in the name of Article 370 it cannot be
snatched away from them. The concept of equality is very
important for any democratic country and because of Article
370 we are not able to achieve the same. If we want to fight
terrorism we should definitely integrate J & K because of
which Pakistan continues to be a great threat not in terms of
power but in terms of its ill hopes to occupy J & K. Also
article 370 is a temporary provision and not the basic feature
of the Indian Constitution which cannot be amended and also
it is not in the same form as it was inserted for the first time
in the Constitution of India, with various presidential Orders
it has been amended from time to time then, I don’t think
 
International Journal of Multidisciplinary Research and Development
 

there should be any issue regarding it’s abrogation in the best 05/removing-article-370-will-cause-earthquakes-
interest of not only the Kashmiris but the whole of India. separating-kashmir-from-india-omar-abdullah/
12. Ramandeep Kaur, What is your opinion- Should the
Conclusion
Government take a step to abolish the Article 370 or
Now from the above discussions one can clearly make out
that the Article 370 is advantageous only for the rulers and not?, Maps of India. com, (May 30, 2014)
not for the subjects. It is unprogressive, discriminatory and http://www.mapsofindia.com/my-india/politics/what-is-
National security threat as well. And the whole idea of your-opinion-should-government-take-a-step-to-abolish-
adopting it at the time of Independence has totally lost its the-article-370-or-not
meaning. Special status is enjoyed only by the politicians 13. Naseer Ganai, Attacked from all sides: J & K leaders
keeping themselves out of the purview of democratic lash out at Modi over Article 370 Comment, MailOnline
accountability. There is an immediate need to review Article
India,(Feb 13th
370 in relation to the welfare of the people and for the
overall development of India by the means of full integration 2015),http://www.dailymail.co.uk/indiahome/indianews/
of the State. article-2517118/Attacked-sides-J-K-leaders-lash-Modi-
Article-370-comment-CM-Omar-accusing-mixing-state-
Reference List laws-Centre-policies.html
1. Dr. J. N. Pandey, Constitutional law of India, 776( 51st 14. Tarunjyoti Tewari, Article 370 of the Constitution Of
ed. 2014, Central Law Agency) India: Need Parliamentary Debate,
2. O.P. Rai, The Constitution of India, 203-204(2nd academia.edu.http://www.academia.edu/8075583/ARTI
ed.2014Orient Publishing Company) CLE_370_OF_CONSTITUTION_OF_INDIA?login=ni
3. Amitabh Mattoo, Article 370 was and is about providing misha.tiwari85@gmail.com&email_was_taken=true
space, in matters of governance, to the people of a State
who felt deeply vulnerable about their identity and
insecure about the future, The Hindu, (May 29,2014
22:54 IST)
http://www.thehindu.com/opinion/lead/understanding-
article-370/article5426473.ece
4. Pathikrit, The Fallacy of Article 370 and why it deserves
to be abrogated, One India (may 30,2014,11:02 IST)
http://www.oneindia.com/feature/the-fallacy-of-article-
370-and-why-it-deserves-to-be-abrogated-1456694.html
5. InstrumentofAcessionofJammuandKashmirStateDated26
October,1947,http://www.centralexcisehyderabad4.gov.i
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debate-article-370-100038435.html
7. R. Jaggannathan, Sorry Omar, It’s you who are ill-
informed and not only Modi, F. Politics,(Dec.2, 2013,
17:50 IST)http://www.firstpost.com/politics/omar-
should-check-why-nc-backed-biased-bill-against-jk-
women-1262095.html
8. Prakash Nanda, Understanding the Article 370, Indian
Defence Review, (Date: 26
May,2014),http://www.indiandefencereview.com/unders
tanding-the-article-370/
9. Pravin Singh, Article 370: Facts you should know, One
India, (August 19,2014,17:36 IST)
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10. Riyaz Wani, Any attempt to revoke Article 370 will be
over our dead bodies, Omar, Tehelka.com,(June26
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article-370-will-be-over-our-dead-bodies-omar/
11. Removing Article 370 will cause earthquakes separating
Kashmir from India: Omar, Faking News,
May28,2014http://www.fakingnews.firstpost.com/2014/

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