Exactly 77 years ago, on October 17, 1949, Article 306 A (which later renumbered as Article 370) of the Constitution of India was introduced to the Constituent Assembly of India by Gopalaswami Ayyangar and it was adopted in the Constitution of India the same day. Dr. B.R. Ambedkar declined to draft the provision of Article 306A due to his concerns over its long-term implications. Therefore, the Prime Minister Pandit Jawaharlal Nehru delegated this task to N. Gopalaswami Ayyangar who was a member of the Drafting Committee of the Constituent Assembly of the India and had served as Prime Minister of the Princely State of Jammu and Kashmir in past. The Drafting Committee proposed a separate set of constitutional provisions for the State of J&K prepared by Ayyangar in consultation with the leaders of National Conference. These provisions were embodied in the draft Article 306A of the Constitution of India that was introduced to the Constituent Assembly of India on October 17, 1949 by N. Gopalaswami Ayyangar. The basic purpose of adding Article 306A (370) was to extend the constitution of India to Jammu and Kashmir. But the provisions of Article 370 were later abused by the Kashmir centric leadership for separate constitutional arrangements in Jammu and Kashmir. It was a tool in the hands of Kashmiri leaders provided by Nehru Government for the political gains of few while systematic and legitimised exploitation of masses in Jammu and Kashmir.
Constituent Assembly on Draft Article 306A
N. Gopalaswami Ayyangar
Sir, I move:
“That with reference to Amendment no.379 of List XV (Second Week), after article 306, the following new article be inserted: ‘306A. (1) Notwithstanding anything contained in this Constitution,(a) the provisions of article 211A of this Constitution shall not apply in relation to the State of Jammu and Kashmir; (b) the power of Parliament to make laws for the 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 the State; and(ii) such other matters in the said List as, with the concurrence of the Government of the State, the President may by order specify;Explanation. – For the purposes of this article, the Government of the State means the person for the time being recognised by the Union as the Maharaja of Jammu and Kashmir, acting on the advice of the Council of Ministers…” I am making, Sir, with your permission, a change here. Instead of the word “appointed” I am substituting the words, “for the time being in office” – “under the Maharaja’s Proclamation, dated the fifth day of March, 1948.”
Hriday Nath Kunzru said:
We could not hear the honourable member correctly. N. Gopalaswami Ayyangar:
“Explanation. – For the purposes of this article, the Government of the State means the person for the time being recognised by the Union 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.”
N. Gopalaswami Ayyangar said:
I have there substituted the words “or the time being in office,” for the word “appointed”.
“(c) the provisions of article 1 of this Constitution shall apply in relation to the State.(d) such of the other provisions of this Constitution and subject to such exceptions and modifications shall apply in relation to the State as the President may by order specify;Provided that no such order which relates to the matters specified in the Instrument of Accession of the State aforesaid shall be issued except in consultation with the Government of the State;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 that Government.(2) If the concurrence of the Government of the State referred to in sub-clause (b) (ii) or in the second proviso to sub-clause (d) of clause (1) was 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 preceding clauses 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: Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification.” N. Gopalaswami Ayyangar: Sir, this matter, the matter of this particular motion, relates to the Jammu and Kashmir State. The House is fully aware of the fact that the State has acceded to the Dominion of India. The history of this accession is also well know. The accession took place on the 26th October, 1947. Since then, the State has had a chequered history. Conditions are not yet normal in the State. The meaning of this accession is that at present that State is a unit of a federal State, namely, the Dominion of India. This Dominion is getting transformed into a Republic, which will be inaugurated on the 26th January, 1950. The Jammu and Kashmir State, therefore, has to become a unit of the new Republic of India. N. Gopalaswami Ayyangar: As the House is aware, accession to the Dominion always took place by means of an instrument which had to be signed by the Ruler of the State and which had to be accepted by the Governor-General of India. That has taken place in this case. As the House is also aware, Instruments of Accession will be a thing of past in the new Constitution. The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of Accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution itself; and, in the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other States have agreed to integrate themselves in that way and accept the Constitution provided. Maulana Hasrat Mohani asked, Why this discrimination, please? N. Gopalaswami Ayyangar, replied: The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration. It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States. (Cheers) At present it is not possible to achieve
that integration. There are various reasons why this is not possible now, I shall refer again to this a little later. N. Gopalaswami Ayyangar: In the case of the other Indian States or Unions of States there are two or three points which have got to be remembered. They have all accepted the Constitution framed for States in Part I of the new Constitution and those provisions have been adapted so as to suit conditions of Indian States and Unions of States. Secondly, the Centre, that is the Republican Federal Centre will have power to make laws applying in every such State or Union to all Union Concurrent Subjects. Thirdly, a uniformity of relationship has been established between those States and Unions and the Centre. Kashmir’s conditions are, as I have said, special and require special treatment.
N. Gopalaswami Ayyangar Referring to Special Conditions:
I do not want to take much of the time of the House, but I shall briefly indicate what the special conditions are:
In the first place, there has been a war going on within the limits of Jammu and
Kashmir State.
There was a cease-fire agreed to at the beginning of this year and that cease-fire
is still on. But the conditions in the State are still unusual and abnormal. They have not settled down. It is therefore necessary that the administration of the State should be geared to these unusual conditions until normal life is restored as in the case of the other States.
Part of the State is still in the hands of rebels and enemies.
We are entangled with the United Nations in regard to Jammu and Kashmir and
it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.
Again, the Government of India have committed themselves to the people of
Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the
constitution of the State as well as the sphere of Union jurisdiction over the State.
At present, the legislature which was known as the Praja Sabha in the State is
dead. Neither that legislature nor a constituent assembly can be convoked or can function until complete peace comes to prevail in that State. We have therefore to deal with the Government of the State which, as represented in its Council of Ministers, reflects the opinion of the largest political party in the State. Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other States.
Now, if you remember the viewpoints that I have mentioned, it is an inevitable
conclusion that, at the present moment, we could establish only an interim system. Article 306A is an attempt to establish such a system.
Provisions of the Article 306A
Aayangar said:
I shall now proceed to take the House through the provisions of this article. As honourable Members will remember, the constitution of Indian States is mainly governed by article 211A of this Constitution which applies the Constitution to Indian States, subject to the modifications contained in Part VI-A read with the Schedule. So far as that provision in concerned, I have already indicated to you that the provisions regarding the Constitution of other States could not at present be applied to Jammu and Kashmir. Therefore, clause (1) (a) of this article says that the provisions of article 211A of this Constitution shall not apply to the State of Jammu and Kashmir. The Second portion of this article relates to the legislative authority of Parliament over the Jammu and Kashmir State. This governed primarily by the Instrument of Accession. Broadly speaking, that legislative power is confined to the three subjects of defence, foreign affairs and communications, but as a matter of fact these broad categories include a number of items which are listed in the Instrument of Accession. I believe they number some twenty to twenty-five. Now, these items have undergone a change in description, in numbering, in arrangement, as amongst themselves, in List I and List III of the new Constitution. It is therefore necessary that the items mentioned in the Instrument of Accession should be brought into line with the changed designations of entries in Lists I and III of the new Constitution. So, clause (1) (b) of article 306A says that this listing of
the items as per the terms of the new Constitution should be done by the President in consultation with the government of the Sate. Clause (b) (ii) refers to possible additions to the List in the Instrument of Accession, and these additions could be made according to the provisions of this article with the concurrence of the government of the Sate. The idea is that even before the Constituent Assembly meets, it may be necessary in the interests of both the Centre and the State that certain items which are not included in the Instrument of Accession would be appropriately added to the List in that Instrument so that administration, legislation and executive action might be furthered, and as this may happen before the Constituent Assembly meets, the only authority from whom we can get consent for the addition is the Government of the State. That is provided for. Then, there is the Explanation, which defines what the Government of the State means. The Government of the State is defined both in the Constitution which is now supposed to be in force in the Jammu and Kashmir State as well as in the Proclamation which the Maharaja issued on the 5th March, 1948. The terms of the Proclamation, to the extent that they are inconsistent with the provisions of the Constitution Act of the State, will prevail over that Constitution Act, and therefore it is that in this Explanation it is the Proclamation which is referred to. Under the terms of that Proclamation the Maharaja constituted an interim popular Government, and he said: – “I hereby ordain as follows :-(1) My Council of Ministers shall consist of the Prime Minister and such other Ministers as may be appointed on the advice of the Prime Minister. I have by Royal Warrant appointed, Sheikh Mohd. Abdullah as the Prime Minister with effect from the 1st day of March 1948. He proceeds -“The Prime Minister and other Ministers would function as a Cabinet and act on the principle of joint responsibility.” Then there was no Legislature functioning, and so he instituted a kind of responsible Government with a Prime Minister and colleagues who would own collective responsibility for their acts and regard themselves as jointly responsible for all the acts of the Government. Now, that is brought out in this Explanation. The Explanation says that the Maharaja will be recognised by the Union instead of by the President. Perhaps we may leave it to the Third Reading. As you know the scheme of the Constitution Act is that the Rajpramukh must be recognised by the President. So, this
also says that the Maharaja of Jammu and Kashmir should be a persons recognised for the time being by the Union. As regards the Council of Ministers, this Proclamation set up a system under which this Council was to be established, viz., that the Maharaja first finds the Prime minister and then on his advice appoints his colleagues, and the Explanation as now amended by me says that whatever Council of Ministers is in being at the time will, along with the Maharaja to whom they are responsible give their concurrence or give their advice on such matters as are referred to them under this article. Clauses (c) and (d) refer to the provisions of the Constitution other than the matters listed in Lists I and III. These various provisions have been divided into certain categories. The first according to this draft is that article 1 of the Constitution will automatically apply. As you know, it describes the territory of India, and includes amongst these territories all the States mentioned in Part III, and Jammu and Kashmir is one of the States mentioned in Part III. With regard to the other provisions in the Constitution, these will apply to the Jammu and Kashmir State with such exceptions and modifications as may be decided on when the President issues an order to that effect. That Order can be issued in regard to subjects mentioned in the Instrument of Accession only after consultation with the Government of the State. In regard to other matters, the concurrence of that Government has to be taken. Now, it is not the case, nor is it the intention of the members of the Kashmir Government whom I took the opportunity of consulting before this draft was finalised – it is not their intention that the other provisions of the Constitution are not to apply. Their particular point of view is that these provision should apply only in cases where they can suitably apply the only subject to such modifications or exceptions as the particular conditions of the Jammu and Kashmir State may require. I wish to say no more about that particular point at the present moment. Then we come to clause (2). You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State.
Now, you will recall that in some of the clauses of this article we have provided for the concurrence of the Government of the State. The government of the State feel that in view of the commitments already entered into between the State and the Centre, they cannot be regarded as final authorities for the giving of this concurrence, though they are prepared to give it in the interim periods but if they do give this concurrence, this clause provides that that concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly may take whatever decisions it likes on those matters. The last clause refers to what may happen later on. We have said article 211A will not apply to the Jammu and Kashmir State. But that cannot be a permanent feature of the Constitution of the State, and hope it will not be. So the provision is made that when the Constituent Assembly of the state has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may on the recommendation of that Constituent Assembly issue an order that this article 306A shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him. But before he issues any order of that kind the recommendation of the Constituent Assembly will be a condition precedent. That explains the whole of this article.
Effect of the Article
The effect of this article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a Constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend. That, Sir, is briefly a description of the effect of this article, and I hope the House will carry it. (Amendment Nos. 459, 460 and 461 were not moved) Mahavir Tyagi:
I am not in concurrence with the wording of the clauses, but I do not wish to move the amendments. (Amendment No. 462 was not moved)
President:
There is one more amendment of which notice was received this morning. That is by Shri Mahavir Tyagi to the effect ‘that in amendment No.451 of List XX (Second Week), in the proviso to clause (3) of the proposed new article 306A” for the word
“recommendation” the word “consultation” be substituted. Mahavir Tyagi: I am not moving that too. President
The article is now open to discussion.
Hasrat Mohani:
Sir, I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my Friend Sheikh Abdullah, not am I opposed to the acceptance of the Maharaja as the ruler of Kashmir. And if the Maharaja of Kashmir gets further powers and concessions I will be very glad. But what I object to is this. Why do you make this discrimination about this Ruler? My. Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis ……… N. Gopalaswami Ayyangar: That is a wrong statement. I never said so.
Hasrat Mohani:
That it will assume independence afterwards. But may I ask a question? when you make all these concessions for Kashmir I most strongly object to your arbitrary act of compelling the Baroda State to be merged in Bombay. The administration of Baroda state is better than the administration of many other Indian Provinces. It is scandalous that you should compel the Maharaja of Baroda to have his raj merged in Bombay and himself pensioned off. Some people say that he himself voluntarily accepted this merger.
I Know it is an open secret that he was brought form England and compelled against his will………
President replied:
Maulana, we are not concerned with the Maharaja of Baroda here.
Hasrat Mohani:
Well, I would not go into any detail. But I say that I object to this sort of thing. If you grant these concessions to the Maharaja of Kashmir you should also withdraw your decision about the merger of Baroda into Baroda into Bombay and allow all these concessions and many more concessions to the Baroda ruler also. President, the question is:
“That with reference to Amendment No.379 of List XV (Second Week), after article 306, the following new article be inserted: ‘306A. (1) Not withstanding anything contained in this Constitution.(a) the provisions of article 211A of this Constitution shall not apply in relation to the State of Jammu and Kashmir.(b) the power of Parliament to make laws for the 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 are the matters with respect to which the Dominion Legislature may make laws for the State; and(ii) 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 purposes of this article, the government of the State means the person for the time being recognised by the union 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.(c) the provisions of article 1 of this Constitution shall apply in relation to the State;(d) such of the other provision of this Constitution and subject to such exceptions and modifications shall apply in relation to the State as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State aforesaid shall be issued except in consultation with the Government of the State: 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 that Government.
(2) If the concurrence of the Government of the State referred to in sub-clause (b) (ii)
or in the second proviso to sub-clause (d) of clause (1) was 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 preceding clause 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: Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification.’” (The motion was adopted.) (Article 306A was added to the Constitution.)
Need to Insert Article 306A to the Constitution of India
The basic question arises, why was Article 306A added to the Constitution of India? Even, when the proposal came before the Constituent Assembly, Maulana Hasrat Mohani, the Representative of Joint Province (today called as Uttar Pradesh), asked in the constituent Assembly,
“Why this discrimination, please?”
Core Argument of Gopalaswami Ayyangar
Ayyangar replied that this discrimination is due to the special conditions of Kashmir. He further explained the following special conditions:
a) A war going on within the limits of Jammu and Kashmir State. Some areas of the State are
still occupied by the invaders.
b) There was a cease-fire agreed to at the beginning of this year and that cease-fire is still on.
But the conditions in the State are still unusual and abnormal.
c) We are entangled with the United Nations in regard to Jammu and Kashmir and it is not
possible to say now when we shall be free from this entanglement.
d) Again, the Government of India have committed for plebiscite. We have also agreed that the
will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.
e) State Legislature called as Praja Sabha in the State is dead. Neither that legislature nor a
constituent assembly can be convoked or can function until complete peace comes to prevail in that State.
f) Till the time a constituent assembly comes into being, only an interim arrangement is
possible.
g) He concluded that at the present moment, we could establish only an interim system. Article
306A is an attempt to establish such a system. During the debate on draft Article 306A, Ayyangar stressed that Kashmir’s prevailing conditions were special as the war was going on and the process of constitution making could not be convened. In such situation, it needed special treatment that did not mean that Jammu and Kashmir State is special. The members of the National Conference did not move any amendment to the draft. Finally, draft Article 306A was adopted by the Constituent Assembly without any dissent. The draft Article 306A later enacted as Article 370 in the Constitution of India.
Proclamation of Maharaja Hari Singh dated November 25, 1949
Even before the process of including Draft Article 306A had begun in the Constituent Assembly of India, Maharaja Hari Singh was forced to leave from Jammu and Kashmir and all is powers and functions have been transferred by Maharaja to Yuvraj Karan Singh who was appointed as Regent. Once the Constitution of India was prepared to be made applicable to India, the Rulers or Rajpramukhs of the Princely States or of Union had to issue a Proclamation declaring applicability of Constitution of India in their States. Like other Indian States, the Regent of Jammu and Kashmir, Yuvraj Karan Singh acting on behalf of Maharaja of Jammu and Kashmir issued the Proclamation on November 25, 1949, declaring,
“Constitution of India shortly to be adopted by the Constituent Assembly of India shall in so far it is applicable to the State of Jammu and Kashmir, govern the Constitutional relationship between this State and contemplated Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provisions;
That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other Constitutional provisions inconsistent therewith which are at present in force in th/is State.” Once above-mentioned Proclamation was issued either by the Rulers or Rajpramukhs, all other Statues or Instruments and their provisions that were so far applicable in respective territory of Bharat became subject matter of the provisions of the Constitution of India.
India became Republic; Constitution of India Came into Effect
On January 26, 1950, India became a sovereign democratic republic by replacing the Government of India Act, 1935. The Constitution of India was enacted and the provisions of the Constitution applicable to Jammu and Kashmir were divided into two parts; Article 1 and Article 370. Article 1 of the Constitution described the Name and Territory of the Union -(1) India, that is Bharat, is a Union of States.
(2) The States and the territories thereof are specified in the First Schedule.
(3) The Territory of India comprises-
(a) the territories of States
(b) the Union territories specified in first schedule; and
(c) such other territories as may be acquired.
According to First Schedule, Article 1, the State of Jammu and Kashmir was listed at 15 th number.
Text of Article 370 of the Constitution of India
Article 370 was incorporated and placed in Part-XXI of the Constitution of India as temporary provisions with respect to the State of J&K since the process for bringing constitutional reorganisations and uniformities was not yet complete. In such condition, Article 370 was necessary to continue until the State could be brought on par with other States. The Supreme Court in its judgment on December 11, 2023 clarified that due to special circumstances at that time due to ongoing war situation and the absence of State Constituent Assembly, Article 370 was introduced as an interim and temporary arrangement. Its main purpose was to extend the Constitution of India to J&K and to gradually bring the state to the same constitutional footing as other States of the Union. It was a mechanism for phased integration, and not a reflection of incomplete accession.
370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding 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) 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 purposes of this article, the Government of the State means the person for the time being recognised 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;
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such
exceptions and modifications as the President may by order specify: 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: 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 that 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 the 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 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: 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.
Abuse of Article 370 of the Constitution of India
The national leadership of India including Sardar Patel, Dr. Syama Prasad Mookerjee and Dr. B. R. Ambedkar were strictly against the inclusion of Article 370 to the Constitution of India. But Pandit Nehru had different stand. His friendship and trust on Sheikh Abdullah resulted into this constitutional arrangement which affected the people of Jammu and Kashmir and entire nation nearly for seven decades. Sheikh Abdullah started abusing Article 370 and refused to allow the application of full Constitution of India to Jammu and Kashmir as it required the concurrence of the State Assembly. By abusing the provisions of Article 370, he demanded Separate State Flag, Separate Constitution, and Separate Head for the State. Article 370 limited the power of the Parliament to make laws for the State of Jammu and Kashmir Jammu and Kashmir. Parliament legislative power over Jammu and Kashmir was restricted strictly to:
Matters in the Union List and Concurrent List that corresponded to the Instrument of
Accession (defense, foreign affairs, and communications), done in consultation with the State Government.
Any other matters in those lists only if the President issued an order with the concurrence of
the State Government.
Other constitutional provisions of India could be extended to J&K only with the state
government’s consultation or concurrenc
The Constitution (Application to Jammu and Kashmir) Order, 1954 (C.O. 48) was issued on 14 May 1954 by the President of India Dr. Rajendra Prasad under Article 370(1) of the Constitution of India, with the concurrence of the Government of Jammu and Kashmir. It superseded the earlier 1950 Presidential Order and defined the constitutional relationship between the Union of India and Jammu and Kashmir President of India could not apply the provisions of the Parliament of India to Jammu and Kashmir unless Legislative Assembly of Jammu and Kashmir give its concurrence. It empowered that State to decide which provisions, lists (Union, State, and Concurrent), and amendments of the Indian Constitution applied to the State, and with what exceptions or modifications. The biggest abuse of the Article 370 through Presidential Order of May 1954 was the insertion of a new Article 35A to the Constitution of India. The main purpose of Article 35A was to empower the State Legislature of Jammu and Kashmir to define the “permanent residents” of Jammu and Kashmir and grant them special rights and privileges regarding government job, property ownership, settlement and scholarships & financial aids. Under the provisions of Article 370 and Article 35A, the basic human rights and fundamental rights of many sections of Jammu and Kashmir like Women, Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes West Pakistani Refugees, POJK Displaced Persons, Valmiki, Gorkha were violated. As a result, they were socially, economically and politically discriminated in the State of Jammu and Kashmir for nearly seven decades. Though, Jammu and Kashmir has been the integral part of Union of India, these constitutional provisions violated the rights of all the citizens of India. Article 370 and Article 35A were was used by the Kashmir centric leadership to establish a separate identity of Jammu and Kashmir within the larger framework of Constitution of India.
The Constitution (Application to Jammu and Kashmir) Order, 272 of August 5, 2019
On August 5, 2019, President of India, with the concurrence of the Government of State of Jammu and Kashmir, made the order namely the Constitution (Application to Jammu and Kashmir) Order,
2019. This order superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 as
amended from time to time resulting into the abrogation of much debated and discriminated article 35A and the Constitution of Jammu and Kashmir State as a whole. It also applied all the provisions of the Constitution of Indian, as amended from time, in the State of Jammu and Kashmir.
The Constitution (Application to Jammu and Kashmir) Order, 273 of August 6, 2019
On August 6, 2019 in exercise of the powers conferred by clause (3) of article 370 read with clause
(1) of article 370 of the Constitution of India, the President, on the recommendation of Parliament
declared that, as from the August 6, 2019, all clauses of the said article 370 ceased to be operative except the following which is read as under, namely:-
“370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.”
One Nation One Constitution
After Article 370 becomes inoperative and Article 35A has been abrogated, all the laws passed by the Indian Parliament of India are directly applied to Jammu and Kashmir without any ratification by the Legislative Assembly of Jammu and Kashmir. Today, 890 Central Laws are applied to the UT of Jammu and Kashmir, 205 State Laws have been repealed and 130 State Laws are applied after modification. Few of these laws are listed as:
The Indian Penal Code, 1860 (IPC)
The Indian Evidence Act, 1872
The Court-Fees Act, 1870
The Code of Civil Procedure, 1908 (CPC)
The Anand Marriage Act, 1909
The Indian Forest Act, 1927
The Dissolution of Muslim Marriages Act, 1939
The Representation of People Act, 1951
The Hindu Marriage Act, 1955
The Hindu Succession Act, 1956
The Dowry Prohibition Act, 1961
The Limitation Act, 1963
The Oaths Act, 1969
The Code of Criminal Procedure, 1973 (CrPC)
The National Security Act, 1980
The Family Courts Act, 1984
The Administrative Tribunal Act, 1985
The Prevention of Corruption Act, 1988
The Prohibition of Benami Property Transactions Act, 1988
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
The National Commission for Minorities Act, 1992
The Protection of Human Rights Act, 1993
The National Commission for Safai Karamcharis Act, 1993
The Energy Conservation Act, 2001
The Delimitation Act, 2002
The Protection of Women from Domestic Violence Act, 2005
The Commissions for Protection of Child Rights Act, 2006
The Prohibition of Child Marriage Act, 2006
The Right to Education Act, 2009
The Gram Nyayalayas Act, 2009
The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013
The Right to Fair Compensation and Transparency in Land Acquisition Act, 2013
The Commercial Courts Act, 2015
The Aadhaar Act, 2016
Myths Related to Article 370
Over the period of time political leaders, academicians, historians, media persons and others created many myths and built various false narratives with regard to Article 370 of the Constitution of India. There can be two reasons for this, first, their vested interests and second, their incomplete understanding of the facts.
Article 370 was a bridge, a seal, or a channel between J&K and India: Article 370 was
largely described as a bridge, a seal, or a channel between J&K and India and for this reason J&K was the only state which had its own separate Constitution. But the actual fact is that other provinces also had the option of forming Constituent Assemblies. Indian States like Saurashtra, Mysore, and Travancore Cochin set up their own Constituent Assemblies and ultimately adopted the Constitution of India. In Jammu and Kashmir, due to the prevailing war situation, this process was delayed, and the State’s Constituent Assembly was formed only in May 1951.The real issue emerged with the purported political ‘Delhi understanding of 1952’ called as Delhi Agreement of which the signed document remains unavailable to this day.
Article 370 was a special provision: Another popular myth considered Article 370 as a
special provision. Article 370 is located in Part XXI of the Constitution of India, titled
“Temporary, Transitional and Special Provisions.” This part contains a total of 36 Articles. The marginal note to Article 370 clearly states: “Temporary provisions with respect to the State of Jammu & Kashmir.” The word “Special” was not associated with Article 370 at all; it was introduced later in connection with Article 371, and that too in the year 1962.
Article 370 is permanent, and if removed, Jammu and Kashmir would become
independent: On August 5, 2019, all such myth related to Article 370 were shattered/dispelled. On the very day, Article 370 was made inoperative. It is only Article 1 of the Constitution of India that defines the relation of J&K to India, not Article 370. According to Article 1, Schedule 1, Jammu & Kashmir is a State of India, and the removal of Article 370
had no effect on Article 1 whatsoever. Moreover, the Part-II, Section 3 of the Constitution of Jammu and Kashmir (which has been repealed now) stated, “the State of Jammu and Kashmir is and shall be an integral part of Union of India.”
Jammu and Kashmir Post Article 370
The landmark decision of August 5-6, 2019 of the Government of India, under the dynamic leadership of Prime Minister Narendra Modi and Home Minister Amit Shah, unbound the people of Jammu and Kashmir from the discriminatory provisions of Article 370 and Article 35A. It ended the ongoing phenomenon of gross human rights violations in Jammu and Kashmir. This historic move aimed at the dedication, commitment and resolve of the Government of ‘One Nation One Constitution’ for the socio-economic and political transformation of the Jammu and Kashmir vis-à-vis India. This journey of change and transformation offers wide range of opportunities, wide-network of infrastructural development, economic growth aligned with strong investments, greater participation in democracy and governance with the trust and cooperation of all.