Article 370: Special Status, Abrogation and J&K Reorganisation

Article 370 of the Constitution of India gave the former State of Jammu and Kashmir a special constitutional position for close to seventy years. Its hollowing out on 5 August 2019, and the splitting of the State into two Union Territories by the Jammu and Kashmir Reorganisation Act, 2019, changed the political map of the country, and both the old provision and the new arrangement are now standard questions in General Studies papers. These notes cover the accession of 1947, what Article 370 actually said, Article 35A, the orders and the Act of 2019, the two Union Territories, and the Supreme Court judgment of December 2023.

How Jammu and Kashmir joined India

The princely state of Jammu and Kashmir was ruled by Maharaja Hari Singh of the Dogra dynasty when British rule ended in August 1947. He signed the Instrument of Accession on 26 October 1947, after tribal raiders backed by Pakistan entered the Kashmir valley, and Governor-General Lord Mountbatten accepted it the next day. Like the instruments signed by the other princely states, it handed over defence, external affairs and communications to the Union and left the terms of a closer union to be settled later. Article 306A of the draft Constitution, piloted in the Constituent Assembly by N. Gopalaswami Ayyangar, became Article 370 in the Constitution as adopted.

What Article 370 provided

Article 370 sat in Part XXI of the Constitution, which is titled Temporary, Transitional and Special Provisions, and its own marginal heading read Temporary provisions with respect to the State of Jammu and Kashmir. The scheme had four limbs that a student should be able to state in one line each.

• Article 1, which names India and lists its territory, and Article 370 itself applied to the State directly; the rest of the Constitution did not apply on its own.
• Parliament could make laws for the State on the subjects surrendered by the Instrument of Accession, and on other Union List subjects only with the concurrence of the State government.
• Other provisions of the Constitution could be extended to the State by an order of the President under Article 370(1)(d), again with that concurrence.
• Under Article 370(3) the President could declare by public notification that the article had ceased to be operative, on the recommendation of the Constituent Assembly of the State.

Article 35A and the State's own Constitution

The Constitution (Application to Jammu and Kashmir) Order, 1954 extended a large part of the Constitution to the State and inserted Article 35A into Part III. Article 35A protected the State laws that defined its permanent residents and reserved for them rights in immovable property, State employment, scholarships and settlement, and it placed those laws beyond challenge for violating the Fundamental Rights. The State also had a Constitution of its own, adopted by its Constituent Assembly on 17 November 1956 and brought into force on 26 January 1957, the day that Assembly dissolved itself. It had a separate State flag, an assembly with a six-year term, and its own criminal code, the Ranbir Penal Code, instead of the Indian Penal Code.

The two steps of 5 August 2019

On 5 August 2019 the President issued the Constitution (Application to Jammu and Kashmir) Order, 2019, which superseded the order of 1954 and applied the whole Constitution of India to the State, so that Article 35A went with it. A statutory resolution recommending that all clauses of Article 370 cease to be operative was moved in Parliament the same day. The Jammu and Kashmir Reorganisation Bill was passed by the Rajya Sabha on 5 August and by the Lok Sabha on 6 August 2019, and it received the President's assent on 9 August 2019. The appointed day on which the Act took effect was 31 October 2019, the birth anniversary of Sardar Vallabhbhai Patel.

The Union Territories of Jammu and Kashmir and of Ladakh

The Act divided the State into the Union Territory of Jammu and Kashmir, which has a legislative assembly, and the Union Territory of Ladakh, which has no legislature and was carved out with the two districts of Leh and Kargil. Girish Chandra Murmu took office as the first Lieutenant Governor of Jammu and Kashmir and Radha Krishna Mathur as the first Lieutenant Governor of Ladakh, both on 31 October 2019. India therefore had twenty-eight states and nine Union Territories from that day, and eight Union Territories after Dadra and Nagar Haveli was merged with Daman and Diu on 26 January 2020. Police and public order in the Union Territory of Jammu and Kashmir stay with the Union through the Lieutenant Governor while land remains with the elected government, which is the reverse of the arrangement in Delhi. The Delimitation Commission headed by Justice Ranjana Prakash Desai, whose final order came in May 2022, fixed ninety assembly seats, forty-three in the Jammu division and forty-seven in the Kashmir division, reserved nine seats for the Scheduled Tribes and seven for the Scheduled Castes, and left twenty-four seats for the areas held by Pakistan vacant. Elections to the assembly were held in September and October 2024, the first in the territory since 2014.

The Supreme Court judgment of 2023

In In Re: Article 370 of the Constitution, decided on 11 December 2023, a Constitution Bench of five judges headed by Chief Justice D. Y. Chandrachud upheld the presidential order and the abrogation. The Court held that Article 370 was a temporary provision meant to serve the transition; that Jammu and Kashmir kept no element of internal sovereignty after it acceded to India; that the power under Article 370(3) survived the dissolution of the State's Constituent Assembly; and that the carving out of the Union Territory of Ladakh was valid. It also directed that statehood be restored to Jammu and Kashmir as soon as possible and that elections to its assembly be held by 30 September 2024.

Why Part XXI matters beyond Kashmir

Part XXI did not end with Article 370. Article 371 and the articles after it carry special provisions for other states, and examiners pair them with Article 370 in matching questions: Article 371A for Nagaland, 371B for Assam, 371C for Manipur, 371D for Andhra Pradesh and Telangana, 371F for Sikkim, 371G for Mizoram, 371H for Arunachal Pradesh and 371J for the Hyderabad-Karnataka region. Unlike Article 370, these provisions are still in force.