The most important feature of Federalism in the United States of America was the
compact between the erstwhile 13 British Colonies that constituted themselves
first into a Confederation and then into a Federal Polity under the 1791
Constitution of the United States of America. In a Confederation, Units do have
a right to secede, but in a Federation they do not have such a right though in
this system they are given a lot of autonomy to operate within their allotted
The Supreme Court of India in State of West Bengal Vs. Union of India, 1963 AIR 1241 too had attached the highest importance to an agreement or
compact between States as an essential characteristic of Federalism. Since such
as an agreement was not there in India, it held that India was not a Federal
Subsequently, the same was overruled and Federalism was recognized as the Basic
Structure of the Constitution of India in Keshavand Bharti Vs State of
Kerala & Anr. , AIR 1973 SC 1461 and reiterated in the
S. R. Bommai Vs Union of India , AIR 1994 SC 1918.
Article 370 of the Constitution of India is an essential facet of our Federalism
as like in the compact in the US, it governs the Centre’s relationship with
Jammu & Kashmir. It is, therefore, necessary to understand the origin of Article
370 of Constitution of India, the related constitutional issues such as its
temporary status and frequent calls for its abrogation, and the Supreme Court’s
response to these issues.
At the time of Independence, there were two kinds of territories in India -- one
was British India that was under the direct administrative
control of the British. The other comprised the Princely States that
had signed subsidiary alliance treaties with the British and had a British
Resident posted in their territories. The Maharajas, Rajas and Nizams were still
the De jure Rulers administering these Territories/States. In vital matters of
war and peace, these Rulers were required to take the concurrence of the British
The Indian Independence Act, 1947 divided British India, i.e., the territories
under the direct administration of the British, into two countries -- India and
Pakistan -- on August 15, 1947. But some 580 Princely States that
had signed subsidiary alliances with the British also had their sovereignty
fully restored to them and given three options -- to remain as Independent
Countries, or join the Dominion of India or join the Dominion of Pakistan.
Section 6 (a) of the 1947 Act said that this act of joining one of the two
countries was to be through an Instrument of Accession . Though no
prescribed form was provided, a State so joining under Section 6 (2) of the 1947
Act could specify the terms on which it was deciding to join one of the new
These terms would be those which the Ruler of the Princely State
accepted as matters on which the dominion legislature (Indian Parliament) may
make laws for the State. And also with respect to the limitations on the power
of the dominion legislature to make laws for the State and exercise executive
authority of the dominion in the said Princely State . Thus, the
Instrument of Accession was supposed to regulate and govern the
distribution of powers between the Central Government and the concerned
Princely State .
Technically speaking, the Instrument of Accession was, therefore,
like a treaty between two sovereign countries which had decided to work
together. It was just like any other contract between two countries. The maxim
under international law which governs contracts or treaties between States is Pucta
Sunt Servanda, i.e., promises between States must be honoured. If there is a
breach of contract, the general rule is that parties are to be restored to the
original position, i.e., the pre-agreement status.
Pre 1947, Kashmir was a Princely State with a Hindu King and a
majority Muslim population. Due to its strategic geographical location, its
Ruler Maharaja Hari Singh initially decided to remain independent and preferred
to sign standstill agreements with India and Pakistan. Pakistan had accepted his
proposal and operated the post and telegraph system in Kashmir. But when there
was an invasion by the Afridis, Tribesmen and Army Men in plain clothes from
Pakistan, Maharaja Hari Singh sought India’s help and India responded that it
could send its army only after Kashmir acceded to India. This was a just demand.
Hari Singh, on the advice of Sheikh Abdullah, thus signed the Instrument
of Accession on certain terms on 26th October, 1947 and Lord Mountbatten
as Governor General of independent India accepted it on 27th October, 1947 on
behalf of the Government of India. The Schedule appended to the Instrument
of Accession gave the Indian Parliament power to legislate for Jammu &
Kashmir on only Defence, External Affairs and Communications. In Clause 5 of
Jammu & Kashmir’s Instrument of Accession , Maharaja Hari Singh explicitly
mentioned that the terms of my Instrument of Accession cannot be varied by any
amendment of the Act or of Indian Independence Act unless such amendment is
accepted by me by an Instrument supplementary to this Instrument. Its Clause 7
said nothing in this Instrument shall be deemed to commit me in any way to
acceptance of any future constitution of India or to fetter my discretion to
enter into arrangements with the Government of India under any such [a] future
Sheikh Abdullah was a popular leader of Kashmir and the Chief of the National
Conference. Maharaja Hari Singh first appointed Sheikh Abdullah as Head of the
Emergency Council on 30th October, 1947 with 22 other Officers. Maharaja Hari
Singh then appointed Sheikh Abdullah as his Prime Minister on 05th March, 1948.
Through the March 1948 Proclamation, Maharaja Hari Singh also directed that a
Constitution be framed for his State. Accordingly, in India’s acceptance of the
Instrument of Accession of Jammu & Kashmir, Governor-General
Lord Mountbatten, clearly stated It is my Government’s wish that as soon as law
and order is restored in Kashmir and her soil is cleared of the invader, the
question of the State’s accession be settled by a reference to the people.
Thus, India regarded accession as purely temporary and provisional. This was
said in the Government of India’s White Paper on Jammu & Kashmir in 1948.
In a letter to Sheikh Abdullah dated 17th May 1949, Pt. Jawahar Lal Nehru,
with the concurrence of Vallabhbhai Patel and N. Gopalaswami Ayyangar (who
drafted Article 370), wrote as under;
It has been settled policy of Government of India, which on many occasions
has been stated both by Sardar Patel and me, that the Constitution of Jammu &
Kashmir is a matter for determination by the people of the State represented in
a Constituent Assembly convened for the purpose.
Between Nehru and Patel, Nehru due to his Kashmiri lineage was keen to have
Kashmir in India. Patel on the other hand was more interested in getting
Hyderabad. The Instrument of Accession eventually had to be made
part of the Constitution of India so that the powers of the Government of India
and Parliament vis-a-vis Jammu & Kashmir are clearly delineated. Article 370 of
Constitution of India is nothing but a constitutional recognition of the
conditions mentioned in the Instrument of Accession that the
ruler of Jammu & Kashmir signed with the Government of India in 1948. It
reflects the contractual rights and obligations of two parties.
The original draft of Article 370 of Constitution of India was given by the
Government of Jammu & Kashmir. This was then modified and negotiations were held
between the Government of India and the State of Jammu & Kashmir for over five
Finally, Article 306-A (now 370) was passed in our Constituent Assembly on 27th
May, 1949. N. Gopalaswami Ayyangar, member of the Assembly moved the motion. He
also reiterated, though accession is complete but we have offered to have
plebiscite taken when conditions are created for the holding of a proper, fair
and impartial plebiscite. He also said if accession is not ratified then we
shall not stand in the way of Kashmir separating herself away from India.
On 16th June, 1949, Sheikh Abdullah and three others joined Constituent Assembly
as its members. The commitment to the plebiscite and drafting of a separate
Constitution by Jammu & Kashmir’s Constituent Assembly was repeated by Ayyangar
on 17th October, 1949 when Article 370 was finally adopted and included in the
Constitution of India by the Constituent Assembly.
Article 370 of Constitution of India is the first Article of Part XXI of
Constitution of India and is unique in many ways. The heading of this part is Temporary,
Transitional and Special Provisions. The Article exempted Jammu & Kashmir
from the Constitution of India and permitted it to draft its own Constitution.
It restricted Parliament’s legislative powers in respect of Jammu & Kashmir to
extend a Central law to Jammu & Kashmir on the subjects included in the
Instrument of Accession , mere consultation with the State Government
is needed but to extend other matters, concurrence of the
State Government is mandatory. There is a huge difference between consultation
and concurrence. In the former, discussions would suffice but in the latter
acceptance by the other party, i.e., the Government of Jammu & Kashmir, is
Article 370 of Constitution of India was temporary in the sense that the
Constituent Assembly of Jammu & Kashmir was given the right to
modify/delete/retain it. The Constituent Assembly of Jammu & Kashmir decided in
its wisdom and rightly so to retain it. The other view was that it was temporary
till a plebiscite was held to ascertain the people’s wishes. The Narendra Modi
Government itself said in 2018 in a written reply in Parliament that there was
no proposal to remove Article 370 of Constitution of India.
The Delhi High Court in W.P.(C) 9300/2015 Kumari Vijayalaxmi Jha Vs
Union of India & Anr., , Vide its Judgment dated April 11, 2017 rejected a
petition holding that Article 370 of Constitution of India was temporary and its
continuation a fraud on the Constitution. The Supreme Court too said in April
2018 that despite the headnote using the word temporary, Article 370 of
Constitution of India was not temporary.
The Apex Court in State Bank of India Vs Santosh Kumar Gupta & Anr. , in
Civil Appeal No. 12237-12238 of 2016 Vide its Judgment dated December 16, 2016
also accepted that due to historical reasons, Jammu & Kashmir had a special
In Prem Nath Kaul Vs State of Jammu & Kashmir , AIR 1959 SC 749, a
five-judge bench of the Supreme Court observed on Article 370 (2):
This clause shows that the Constitution makers attached great importance
to the final decision of the Constituent Assembly, and the continuance of the
exercise of powers conferred on the Parliament and the President by the relevant
temporary provisions of Article 370 (1) is made conditional on the final
approval of the Constituent Assembly of Jammu & Kashmir.
Jammu & Kashmir’s Constituent Assembly was thus given the right to take a call
on Article 370 of Constitution of India. The unanimous Judgment was authored by
Justice P. B. Gajendragadkar on his behalf and on behalf of Chief Justice of
India S. R. Das, Justices S. K. Das, K. N. Wanchoo and Mohammad Hidaytullah.
Thus the Bench of eminent Judges was convinced that Jammu & Kashmir’s
relationship with India was to be finally determined by the Jammu & Kashmir
Constituent Assembly. But in Sampat Prakash Vs State of Jammu & Kashmir
, AIR 1969 SC 1153, another Bench of the Apex Court, without even bothering to
cite its own 1959 Judgment, decided that Article 370 of Constitution of India
could still be invoked even after the dissolution of Jammu & Kashmir’s
The Supreme Court has refused to accept that Article 370 of Constitution of
India is temporary in nature. A five-Judge Bench held, Article 370 of
Constitution of India has never ceased to be operative. Thus, Article 370
of Constitution of India is a permanent provision. If it is a permanent feature
of our Constitution then it cannot be amended and thus can be said to be the
part of the Basic Structure. Under Article 368 of Constitution of India,
Parliament can amend any provision of the Constitution of India but as per the
Keshvanand Bharti Judgment, no constitutional amendment can either destroy
the Constitution or alter its basic features. Interestingly, those opposed to
Article 370 of Constitution of India make contradictory arguments-. On the one
hand, they argue it was a temporary provision and, therefore, is no more valid
or needed. On the other, they continue to justify repeated use of Article 370 of
Constitution of India by the Government of India.
The Supreme Court has the power to interpret words used in the Constitution of
India. In fact its decisions under Article 141 of Constitution of India are
considered binding law. Thus, the Court in its interpretation of life under
Article 21 held that life means to live with human dignity. It even
held that the right to privacy is implicit in Article 21 of Constitution of
India. Similarly, it held that the word temporary in the heading of Chapter XXI
does not mean temporary. Any temporary provision may indeed be termed as special.
Thus the word special in the heading of this Chapter was inserted by the
13th Constitutional Amendment in 1962. Sardar Patel himself had said in the
Constituent Assembly that a special provision had been made for the
Kashmir in view of the existing relationship of the Centre with the State of
Jammu & Kashmir.
In fact, there are temporary provisions in the of Constitution of India such as
reservation for the Scheduled Castes (SCs)/ Scheduled Tribes (STs) in Parliament
and State Assemblies which were initially there just for 10 years. English, for
instance, was temporarily permitted as the language of Governmental work.
The Constituent Assembly of Jammu & Kashmir was convened on 31st October, 1951
and after adopting the Jammu & Kashmir Constitution a decision was taken to
dissolve it from 26th January, 1957. On the other hand, after the signing of
three copies of the Constitution of India on 24th January, 1950, India’s
Constituent Assembly was merely adjourned sine die.
The Article 370 (3) of Constitution of India can probably be deleted with the
concurrence of the State Legislative Assembly, which today represents the will
of the people through the elected representatives.
Presidential Orders and the Hollowing Out of Article 370
On December 19, 2018, the President of India issued a proclamation declaring
President’s rule in J&K. Under the proclamation, the President assumed to
himself all the functions of the Government of the state and declared that the
powers of the state legislature would be exercised by Parliament.
Three Things Happened In Quick Succession Thereafter:
- Firstly, on August 05, 2019, the President of India issued an order,
C.O. 272, which said that henceforth, any amendment of Article 370 was
possible upon a recommendation of the Legislative Assembly instead of the Constituent Assembly of J&K. This was very clever – since
President’s Rule was imposed in J&K, India’s BJP-dominated Parliament was
acting as the Legislative Assembly of J&K. Parliament could therefore ask
the President to amend or repeal Article 370.
- Next, both Houses of Parliament issued a recommendation to the President
of India to abrogate Article 370. Consequently, on Aug. 06, 2019 the
President of India issued a declaration making Article 370 inoperative.
- Finally, on Aug. 09, 2019 Parliament enacted the Jammu and Kashmir
Reorganisation Act, 2019, which took away the statehood of J&K altogether
and bifurcated the State into two Union Territories: Jammu & Kashmir, and
Ladakh, both of which will be Centrally administered. In short, President of
India and Parliament fundamentally altered the constitutional status of
Jammu & Kashmir without the consent of her elected representatives.
Over time the frequent use of Presidential Orders – allowed under Article 370
of the Constitution of India – to extend the writ of the centre to Jammu &
Kashmir has considerably weakened this special provision in the Constitution of
Pt. Jawhar Lal Nehru himself admitted in Lok Sabha on 27th November, 1963 that
Article 370 of the Constitution of India has eroded. India has used Article
370 of the Constitution of India more than 45 times to extend provisions of the
Constitution of India to Jammu & Kashmir. Even President Rajendra Prasad was not
very happy about the frequent use of Article 370 of the Constitution of India
and he wrote a letter to Nehru on 6th September, 1952 specifically saying that
executive powers should not be used in this manner. As a matter of fact, by the
use of mere Presidential Orders we have almost nullified the effect of the
special constitutional status of Jammu & Kashmir.
By the Presidential Order of 1954, almost the entire Constitution of India
(including most constitutional amendments) was extended to Jammu & Kashmir.
Ninety-four out of 97 Entries of the Union List are today applicable to Jammu &
Kashmir. Thus, on 94 subjects Parliament already has the exclusive power to pass
laws that will be applicable to Jammu & Kashmir just like any other State. Two
hundred and sixty out of 395 Articles of the Constitution of India have been
extended to the State of Jammu & Kashmir. Similarly of the 12 Schedules of the
Constitution of India, seven have already been extended to Jammu & Kashmir.
Surprisingly, the Central Government has used Article 370 of the Constitution of
India to even amend a number of provisions of Jammu & Kashmir’s Constitution
though that was not the power given to it under this Article of the Constitution
of India. Article 370 of the Constitution of India had a limited mandate to
extend the applicability of the Constitution of India to Jammu & Kashmir. Thus
Article 356 of the Constitution of India (on imposition of President’s Rule in
the States) was extended to Jammu & Kashmir though a similar provision was
already there in Article 92 of Jammu & Kashmir’s Constitution, which indeed
required imposition of President’s Rule in the State only with the concurrence
of the President of India.
To change the provision (in the Jammu & Kashmir Constitution) of the Governor
being elected by the State Assembly, Article 370 of the Constitution of India
was used to convert the position into a nominee of the President of India. This
was an undemocratic step as Governors have proved to be the Centre’s agents in
the State. In fact, ideally, the Governor of each State should be elected by the
Legislative Assembly of the State. If he is to be nominated by the Centre, the
concurrence of the Chief Minister should always be taken.
To extend President’s Rule beyond one year in Punjab, the Central Government had
to bring in the 59th, 64th, 67th and 68th Constitutional Amendments as Article
356 (5) explicitly lays down that President’s Rule in a state cannot be extended
beyond one year unless there is a national emergency or the Election Commission
of India certifies that elections cannot be held to the state’s legislative
We achieved the same result in Jammu and Kashmir just by invoking Article 370 of
the Constitution of India without any need to amend the Constitution of India.
Similarly Article 249 of the Constitution of India, i.e., the power of
Parliament to make laws on entries in the State List, was extended to Jammu &
Kashmir without a resolution by the State Assembly. It was done just on the
recommendation of the then Governor Jagmohan. There is hardly anything in
Article 370 of the Constitution of India except the shell. In fact, decades ago
Gulzari Lal Nanda, the then Union Home Minister, had said it had been almost
completely emptied. It is more useful for the Central Government than for the
people of Jammu & Kashmir.
Even while the core of Article 370 of the Constitution of India has been eroded,
it does of course does have huge sentimental value for the people of Jammu and
Kashmir who would view its abrogation with a great deal of unhappiness. In any
case it will be violation of commitments given by us to at the time of accession
of Jammu & Kashmir.
Article 3 of the Jammu and Kashmir Constitution itself declares the State to be
an integral part of India. In the preamble of the Jammu & Kashmir Constitution,
not only is there no claim to sovereignty like in the Constitution of India, but
rather there is a categorical acknowledgement about the object of the Jammu &
Kashmir Constitution which is to further define the existing relationship of
the state with the Union of India as its integral part thereof . (emphasis
Moreover, the people of the State of Jammu & Kashmir referred as mere permanent
residents not citizens. Thus, due to Article 370 of the Constitution of India
and the decision by the Jammu & Kashmir’s Constituent Assembly to remain part of
the Indian Union, the Jammu & Kashmir Constitution did not proclaim the
sovereignty of Jammu & Kashmir. It makes no claim to independent citizenship.
Since October 1947 the Instrument of Accession was the basis
of J&K’s accession to India and that no change would be made to it without the
consent of her people. In the early years, Indian leaders had gone so far as to
suggest that a plebiscite would be held wherein the people of Kashmir would be
given the right to decide to even secede from the Union of India. Though a
plebiscite is no longer feasible, the motive force of Article 370 of
Constitution of India was that no fundamental constitutional change would be
brought about in J&K without the concurrence of her people through
their elected representatives.
By a clever process of legal drafting, the Government of India has now radically
altered the constitutional position of J&K without so much as consulting her
elected representatives. For this reason, the President’s declaration repealing
Article 370 of Constitution of India, which relies on the resolutions of both
Houses of Parliament instead of the State legislature of J&K, violates the
spirit of Article 370 of the Constitution, though perhaps not its letter.
Since Jammu & Kashmir is an integral part of India, keeping in view Federalism
and the unique history of the State joining the Indian Union, the State of Jammu
& Kashmir has been given some autonomy under Article 370 of Constitution of
Article 370 of Constitution of India is certainly not an issue of integration;
it is an issue of granting autonomy or federalism. Those who advocate its
deletion are more concerned with uniformity rather than integration. Uniformity
and integration are not the one and the same. Preservation of diversity and
granting autonomy indeed lead to lasting integration.
Written By: Damini Singh Chauhan - Semester 9th, The Law School,
University of Jammu.
Email: [email protected]
Articles on 370 Jammu and Kashmir Special Status
Abrogation of Article 370 of Constitution of India consistent with the
Principles of Indian Federalism
Amendment in Article 370 of Indian Constitution
The Emergence of New Jammu And Kashmir
Whether Abrogation of Article 370 And Bifurcation of State of J and K Is
Legitimate Or Not?
Articles 370 and 35A of the Constitution of India have now been Buried
Does Scrapping of Art 370 Poses A Threat to Asymmetrical Federalism In India
Amendment of Article 370 And Issues Arising Thereof
It Is Not About Bhoomi Maatr It Is About Maatr Bhoomi Revocation of Article
370 And Article 35-A
Jammu And Kashmir No More Special
Brief on Article 370 And President Order Dated 05/08/2019
Legal History of Article 370 and 35A and Current Status
Article 35-A A Biggest Fraud on Constitution of India
Temporary provision about Jammu & Kashmir
Integration of J&K With India Is Now Full And Final
Jammu and Kashmir HC Upholds PM's Employment Package (2009) For Kashmiri
Pandits Living In The Valley
J&K Now Stands Fully And Firmly Integrated With India
Daring Resolve Taken By Centre on Jammu And Kashmir
The Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 and The
Jammu and Kashmir Re organization Bill, 2019