Kashmir, its origins and geographical as well as political demarcations are
one the most debated and controversial topics of today's times. Once the cradle
of civilisation, is currently amidst rubble, ruin and despair. Until the
mid-1800s it Kashmir denoted only the Kashmir valley, located between the
greater Himalayas and the Pir Panjal range. However for the provisions of this
blog and under the current geopolitical context, it includes India occupied
Jammu and Kashmir, parts of Azad Kashmir and Gilgit-Baltistan, and the Chinese
occupied provinces of Aksai Chin and the Trans-Karakoram Tract.
This highly contested location is essentially an interplay of China, India,
Pakistan and insurgency militant groups each with varied interests and political
affiliations. To understand the eminence of the amendment of Article 370 and the
subsequent rendering of Article 35(A) regarding citizenship as null and void by
the intervention of the Presidential powers, one must take a deep dive in the
convoluted history of Kashmir.
The dense and intricate games of power play of the region of Kashmir begin from
the annexation of Kashmir by the Sikh empire in 1820, under Ranjit Singh. After
the subsequent defeat of the Sikh empire in the first Anglo Sikh war of 1846,
resulted in the purchase of Kashmir from the British empire under The Treaty of
Amritsar. This led to the Gulab Singh ascending the throne as the Raja of Jammu.
The power was now vested in the hands of a Dogra and Kashmir was considered a
princely state. The reign of Dogra's lasted from 1846-1947. The independence
movement, rise of insurgency and the newly formed free India only furthered the
religious and political affairs in Kashmir, under the rule of Raja Hari Singh.
Kashmir now had a decision to make between:
- Becoming an independent and autonomous state
- Accede to either India or Pakistan, as was mentioned under the partition plan of the Indian Independence Act.
Initially Raja Hari Singh wanted an independent state, however due to the
violation of a standstill by Pakistan through its relentless efforts to invade,
he sought military aid. Jawahar lal Nehru sent troops against Pakistani armed
forces and tribe's men, on the condition of accession with India.
The instrument of accession was signed in 1947 with a promise of military aid
and autonomy granted to the state of Kashmir. This unsurprisingly infuriated
Pakistan, went to the extent of calling Article 370 fraudulent and lacking of
Due to this dispute India later approached the UNSC, which suggested:
- Formation of UNCIP (United nations commission for India and Pakistan).
- Withdrawal of all Pakistani militant troops from invaded locations with
- Maintenance of minimal Indian military for restoration of peace and
Article 370 was enforced as a "transitional and temporary" (Part XXI of the
constitution) means of providing privileges that ensure the socio – economic
autonomy of Kashmir. This was essentially an interim facility until the
constitution of Kashmir could be formed (Adopted in 1956 and enforced by 1957).
The Article was adopted on 17th October 1949, which exempted the state from the
Indian constitution except for Article 1 and Article 370.
Few of the special powers granted under Article 370 are as follows:
- Drafting of own constitution by its constituent assembly.
- Presidential rule as well as financial emergency cannot be enforced
under Article 360, except for matters of external aggression.
- Land ownership and scholarships were exclusively reserved as well.
- The state of Kashmir can have its own flag and Kashmiris can enjoy dual
- India was granted supreme power in the domains of:
- External affairs
Rest of the matters were at the discretion of the state. They required
"concurrence and consultation" of the constituent assembly besides the say of
Thus, granting it a special status that was not assigned to the 565 native
states which integrated fully with the dominion of India. This also resulted in
a domino effect that caused the decree of a Presidential order allowing
modification to Article 370, thus leading to the formation of 35(a). This dealt
primarily with matters concerning citizenship and was considered discriminatory
against Dalits, Women and treated many Indians as 3rd class citizens.
Currently, the President or by extension, the government adhered to its
manifesto, and added a sub – clause 4(d) to Article 367, to read "constituent
assembly" as "legislative assembly of the state" in Article 370(3).
Thus, overcoming the legal deadlock of the inability to abrogate. However, can
such a decision be taken by the President in J&k, which was under Presidential
Following the home ministry notification, the Constitution of Jammu and Kashmir
and the Ranbir Penal Code has ceased to exist.The notification also announced
several measures including application of central laws in the erstwhile state.
"... there are references in the state laws that have been applied to the Union
Territory of Jammu and Kashmir, and the Union Territory of Ladakh to the
expressions 'permanent residents' or 'hereditary state subjects'..., wherever
they occur,shall be omitted," it said.
The references, by whatever form of words, to the "state of Jammu and Kashmir"
or "Jammu and Kashmir" or "state" shall from October 31 be construed as "Union
Territory of Jammu and Kashmir" or "Union Territory of Ladakh", as the case
maybe, it said. For one, the 2019 notification "supersedes" the 1954 Order. And
two, it declares that "all the provisions of the Constitution, as amended from
time to time, shall apply in relation to the State of Jammu and Kashmir".
It was being speculated that the government would scrap Article 370 but this
proposal was denied by reports observing that the Supreme Court is already
dealing with multiple cases relating to Article 370 and Article 35A. Instead of
scrapping Article 370, the government used the power given by the same Article
to the President to make the provision ineffective:
"Article 370(3) reads, "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"
This amendment means that the Indian Constitution is fully applicable in Jammu
Article 367 states:
- Unless the context otherwise requires, the General Clauses Act, 1897,
shall, subject to any adaptations and modifications that may be made therein
under Article 372, apply for the interpretation of this Constitution as it
applies for the interpretation of an Act of the Legislature of the Dominion
- Any reference in this Constitution to Acts or laws of, or made by,
Parliament, or to Acts or laws of, or made by, the Legislature of a State
***, shall be construed as including a reference to an Ordinance made by the
President or, to an Ordinance made by a Governor ***, as the case may be.
- For the purposes of this Constitution "foreign State" means any State
other than India: Provided hat, subject to the provisions of any law made by
Parliament, the President may by order declare any State not to be a foreign
State for such purposes may be specified in the order.
- The presidential order abrogating Article 370 was promulgated at a time
when no legislative assembly was functioning in Jammu and Kashmir. This
leads to a legal complication as Article 370 can only be abrogated by a vote
of confidence in the Constituent Assembly.
- The resolution was passed when two of its chief ministers and other top
party leaders were under house arrest. Some have pointed out that
introducing such a sweeping resolution followed by a bill that attempts to
carve up a state within the Union territory under President's Rule, as a
fall back option, is problematic because the changes being introduced are
permanent in nature.
- In the history of independent India, Union Territories became States,
but never was a State reduced to the status of a Union Territory. This move
goes against the federal and democratic nature of the constitution as it
brings more powers under central control, when ideally the flow of power
should be in the opposite direction.
- Special powers exercised by J&K
- If a woman from J&K marries out of state, she would lose the citizenship
of the state
- Dual citizenship
- Separate flag for Jammu & Kashmir
- Article 360 (Financial Emergency) not applicable
- No reservation for minorities such as Hindus and Sikhs
- Indian citizens from other states cannot buy land or property in J&K
- RTI not applicable
- Duration of Legislative Assembly for 6 years
- Panchayats did not have any rights
- Right to Education (RTE) was not applicable
No special powers now
If a woman marries out of state or country, she will still retain all her rights
and Indian citizenship:
Land or property in J&K
- Single citizenship
- Tricolour will be the only flag
- Article 360 will be applicable
- Minorities will be eligible for 16% reservation
- People from other states will now be able to purchase
The arguments for this move are stated below:
- RTI will be applicable
- Duration of Legislative Assembly for 5 years
- Panchayats will have the same rights as in other state
- Children in the state will benefit from RTE
- Economic powerhouse and education: Kashmir has done well in many fronts,
be it infant mortality, schools per household or even gender ratio. Due to
the restrictions on land ownership it's yet to unleash is true potential.
Introduction of MNCs could create job opportunities and overall prosperity.
- Infrastructure: Building of schools, hospitals and various recreational
zones could help educate and aid in overall development. In a study,
conducted by Doctor's beyond borders, J&K had a very high percentage of
mental health issues (especially PTSD) compared to the national average. Hence, the need for art,
literature and proper health care becomes of paramount importance in a state
that for the most part lives in the womb of hostility.
- Insurgency and militancy: The people of Kashmir lived in constant duress
due to the attacks by Pakistan, lack of employment and isolation. Abrogation
would lead to a feeling of national integration amongst the previously
- Rehabilitation and nationwide investment: This would also serve as a
means of rehabilitating the Kashmiri Pandits dispossessed by the phase of exodus. Land
ownership would now mean that citizens of the country can now invest thus
increasing national integration.
While some have called the move an assault on constitutional values and argue
about its validity, the brunt of the consequent actions has been shouldered by
The following highlight the plight of the natives:
- Over-excessive militarization of areas:
AFSPA has been in accordance since
long. Public fear towards armed men gunning down militants on a daily basis is
to be expected.Due to this many parents do not send their kids to school; a lot
of areas have been vacated completely.
- Restriction of movement:
Traveling even short distances invites trouble from
the JK police authorities. Multiple charges of corruption have been made against
the authorities that accept bribes allowing natives to travel from one
checkpoint to the other.
- Violation of human rights:
The action was followed by grave rights violations coupled with arbitrary
detention of hundreds of people, a total communications blackout, and severe
restrictions on freedom of movement and peaceful assembly. The authorities
have, since then, restored the internet, but have doubled-down on their
crackdown on media and civil society groups, via the frequent use of
counter-terrorism and public safety laws.
- Breach of privacy:
Units of ethical hackers have been formed by the govt. to scan and monitor
"anti-national" content. Reviewing balance and transaction histories of
local's bank accounts, phone tapping, and unwarranted searches are just a
few examples of this violation.
- No access to the internet:
Under the apprehension of videos and hate speeches with the "Anti-National"
content getting out, or info trading with the bordering countries, or even
using the internet to mobilize protests and riots, the authorities shut down
the internet. While one could justify this move, the burden felt by the
locals for more than 2 years was not only inhumane, but also
- Right to Freedom of speech violated:
lawful assemblies suspended and the internet shutdown, freedom of speech has
been reduced to nothing. Most of the locals are apprehensive of crackdown
from the authorities if they do speak and, in that fear, remain silent.
Special Task Force (STF), and recruitment of cyber
volunteers, to monitor social media accounts, including of public servants, for
- Violation of Press-rights:
Freedom of the press in India is legally protected by the Amendment to the
constitution of India, while the sovereignty,national
integrity, and moral principles are generally protected by the law of India to
maintain a hybrid legal system for independent journalism. However, with the
heavy restrictions on travel to Jammu and Kashmir, and the abatement of the
media within the territory is looked at as an effort to keep things under the
- Suffering Economy:
Improper restrictions on travel and over militarization of areas under AFSPA coupled with the relinquishing traders within the borders
exact a heavy toll on the economy in both the macro and micro perspectives.
The amendment declaring Article 370 null and void was essential to India's
sovereignty and long overdue. The importance of legality behind each decision
was elucidated well and the intentions seemed citizen oriented however, the
implementation was haphazard. Only time will tell how historic or in fructuous
this move was.
- Prabhas K Dutta. (2019, Aug 6). Kashmir: "How Govt used Article 370 to
kill Article 370". Indian today.
- Kelly Buchanan. (2019, October 3). "Article 370 and the Removal of Jammu
and Kashmir's Special Status". Library of congress. https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-and-kashmirs-special-status/
- Krishnadas Rajagopal. (2021, November 28)."President's Order scraps its
predecessor and amends Article 370". The hindu. https://www.thehindu.com/news/national/explained-presidents-order-scraps-its-predecessor-and-amends-article-370/article61587647.ece
"Jammu Kashmir no more a state; Union Territories of J-K and Ladakh come
into existence". (2020, Jul 16). Hindustan times. https://www.hindustantimes.com/india-news/jammu-kashmir-no-more-a-state-union-territories-of-j-k-and-ladakh-come-into-existence/story-Si0Ck82wR5idYkAzVfUCgK.html
- Prabhash K Dutta. (2019, Aug 6). "Article 370 has not been scrapped.
What does Modi govt move on Kashmir mean?". India today.
- "Two Years Since Abrogation of Article 370: Human Rights in Jammu and
Kashmir." (2021, 05 Aug). Newsclick. https://www.newsclick.in/Two-Years-Since-Abrogation-Article-370-Human-Rights-Jammu-Kashmir
- "India: Repression Persists in Jammu and Kashmir" (2022, August 2).
Human rights watch. https://www.hrw.org/news/2022/08/02/india-repression-persists-jammu-and-kashmir
- Faizan Mustafa. (Nov 04, 2022). "Explained: What are Articles 370 and
35A?". Indian express. https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/
- Shubham Borkar and Lakshay Kewalramani. (2019, 27 February). "India: All
About Article 370 (Jammu & Kashmir) From Dawn Till Dusk". Mondaq. https://www.mondaq.com/india/constitutional-administrative-law/785148/all-about-article-370-jammu-kashmir-from-dawn-till-dusk
- Article 370: A Short History of Kashmir's Accession to India. (2019, 06
august). Epw, Engage. https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india
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Order on Kashmir is not kosher, yet". Business line, The Hindu.
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august). The BBC news. https://www.bbc.com/news/world-asia-india-49234708
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and Kashmir) From Dawn till Dusk". Khurana and khurana. https://www.khuranaandkhurana.com/2019/02/22/all-about-article-370-jammu-kashmir-from-dawn-till-dusk/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
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