Article 370

Brief History
At the time of independence, various parts of the Indian sub-continent were under different kinds of
administrative arrangements.
Chiefly, there were two kinds of jurisdictions – the principalities – large and small which were ruled by hereditary
princes and provinces which were directly under British administration.
The British Raj had entered into separate treaties and agreements with several princely states for a variety of
purposes, such as the construction and the maintenance of roads and power supply facilities, railway tracks,
communication facilities including posts, telegraph and wireless, flights, taxation, currency and coinage, external
affairs etc.
With the ousting of the British Raj, these treaties would become void automatically. So the newly established
Department of States drew up an agreement in consultation with the Chamber of Princes (comprising of the
rulers of princely states) to ensure that these administrative arrangements would continue unaltered (i.e.,
standstill) until the new Constitution was drawn up. Almost all princely states that had such treaties and
agreements with the British Raj signed a standstill agreement along with the Instrument of Accession to the
Dominion of India.
Article 370
Although Kashmir had a Muslim majority, was ruled by Maharaja Hari Singh, a Hindu. He was also reluctant to accede either with India
or Pakistan. He signed a Standstill Agreement with Pakistan and India as well but announced that Kashmir intended to remain
independent. Sheikh Abdullah, leader of the National Conference demanded his abdication. Rumours about atrocities against the
Muslim population of Poonch caused the civil unrest. After that Pathan tribesman from North-West Frontier Province of Pakistan
crossed border and entered Kashmir. The Maharaja of Kashmir then wrote to the government of India for military assistance, offered
an Instrument of Accession, and setting up an interim government headed by Sheikh Abdullah. The Accession was accepted on 26
October 1947, the Constitution of India came into Kashmir with special provisions made for it in Constitutions Article 370

Article 370 was the result of the Instrument of Accession, signed by the erstwhile ruler of Jammu and Kashmir, Maharaja Hari Singh in
October 1947. Through this instrument, Singh acceded the State to India but limited India’s power to legislate for the State to matters
of defence, external affairs and communication. Article 370 consisted of all the conditions specified in this Instrument of Accession. Its
purpose was to allow Jammu and Kashmir to transition from an independent princely state to a democratic state under the ‘Dominion
of India’.

Through Article 370 of the Constitution of India, Jammu and Kashmir was granted a special constitutional status that set it apart from
any other state of India. The provision substantially limited Parliament’s power to legislate for the State and effectively vested the
greater power to the Jammu and Kashmir state legislature. The provision acted as a means to ensure that the people of Jammu and
Kashmir would have complete say in their sovereignty, and all laws that applied to them came into force with their consent.
This provision had three main ingredients. First, India would not make laws in Jammu and Kashmir except for three subjects
included in the Instrument of Accession. The Parliament could make laws beyond them only with the ‘concurrence of the Jammu
and Kashmir Constituent Assembly’.
Second, no provisions of the Indian Constitution would be applicable to Jammu and Kashmir except for Article 1, which declared
India as a ‘Union of States, and Article 370. The President of India could apply provisions of the Indian Constitution in Jammu
and Kashmir through an executive order—this would insulate the Constitution of Jammu and Kashmir from the influences of the
Parliament of India.
Third, according to Article 370(3), the special status of Jammu and Kashmir could not be amended or repealed, unless the
Constituent Assembly of Jammu & Kashmir recommended it.
On 27 October 1950, Sheikh Abdullah’s party, the Jammu and Kashmir National Conference passed a resolution asking the
Government of India to convene a Constituent Assembly based on adult suffrage. In August-September 1951, elections based on
adult franchise were held and the National Conference swept them – all 75 members were from the party.These 75 members
convened at the Constituent Assembly Chambers in Srinagar on 31 October 1951. In his opening speech, Sheikh Abdullah, to
the relief of Indian political leaders, announced that Kashmir would join India but on its own terms. This was politically significant.
Indeed, Kashmir had already joined the Union, but it was important for the Constituent Assembly to confirm it. Sheikh Abdullah
addressed the elephant in the Assembly and made his preference clear.
The Assembly sat for 56 days over a 5-year period and adopted the Jammu and Kashmir Constitution on 17 November 1956.
The Constitution, to the relief of Indian political leaders, declared that ‘The State of Jammu and Kashmir is and shall be an
integral part of the Union of India’.
Abrogation of 370
On August 5th, 2019, President Ram Nath Kovind issued a presidential order (C.O. 272) amending Article 367 of the Constitution
which explains how the Constitution should be interpreted. The amendment made it such that the reference to the ‘Constituent
Assembly’ in Article 370(3) became a reference to the ‘Legislative Assembly’.

C.O. 272 allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly. Since Jammu and
Kashmir was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the
Union Parliament. So, a few hours after C.O. 272 was issued, the Rajya Sabha recommended the abrogation of Article 370, through a
Statutory Resolution.

On August 6, 2019, President Kovind issued a Proclamation, C.O. 273, putting into effect the Rajya Sabha’s recommendation. All
clauses of Article 370 ceased to operate, except clause 1 which was amended to state that the Constitution of India applies to the
State of Jammu and Kashmir.

On August 9, 2019, the Union Parliament bifurcated the State of Jammu and Kashmir into two Union Territories by passing the Jammu
and Kashmir Reorganisation Act, 2019. The two new Union Territories are Jammu and Kashmir and Ladakh—only the former retained
a legislative assembly.
Arguments of both the Parties and final verdict
https://www.scobserver.in/reports/abrogation-of-article-370-arguments-matrix/

https://www.scobserver.in/reports/challenge-to-the-abrogation-of-article-370-judgement-matrix/