Why in the news?

• A five-judge bench of the Supreme Court headed by Chief Justice D.Y. Chandrachud will begin to hear petitions challenging the amendment to Article 370 and the division of the state of Jammu and Kashmir into the Union Territories of Ladakh and Jammu and Kashmir under the Jammu and Kashmir (Reorganisation) Act, 2019.
• Only Article 1 and Article 370 applied to Jammu & Kashmir while other provisions of the Constitution did not automatically extend to the erstwhile state under the provisions of Article 370.

Article 370 (Part XXI – ‘Temporary, Transitional and Special Provisions’)

• It was included in the Constitution on October 17, 1949. 
• Article 370 exempted J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. 
• It restricts Parliament’s legislative powers in respect of J&K. 
• Mere “consultation” with the state government is needed for extending a central law on subjects included in the Instrument of Accession (IoA).
• The IoA gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. 
• But for extending it to other matters, “concurrence” of the state government is mandatory. 
• The J&K Constituent Assembly had the right to modify/delete/retain Article 370, and it decided to retain it, which could be interpreted as Article 370 being temporary in nature.
• Article 370(3) permits deletion of Article 370 by a Presidential Order. 
• Such an order, however, is to be preceded by the concurrence of the J&K’s State Assembly. 

Facts on Article 370

Article 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

1. 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
2. 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 recognized 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 Maharajas 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 1 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 2 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.

What are the changes to Article 370?

• As per Article 370, articles of the Constitution other than Articles 1 and 370 are not automatically applicable to Jammu and Kashmir.
• However, the President is empowered by clause (1)(d) of Article 370 to extend them through an executive order with the concurrence of the government of J&K.
• Clause 3 of Article 370 stated that the President may declare that the article ceases to be operative completely or partially, but only on the recommendation of the Constituent Assembly of J&K.
  • However, the Constituent Assembly of J&K was dispersed in 1957 and is no longer in existence.
  • Therefore, this power of the President had ceased unless a new Constituent Assembly came into existence.
• As per the provisions of Article 370, the term “state government” meant the Sadr-e-Riyasat (earlier the Maharaja) of J&K acting on the advice of the council of ministers.
  • However, the President could not obtain the concurrence of the state government since it had collapsed in 2018.
• As a result, there were no constitutional and legal mechanisms available to the Union Government to abrogate or amend Article 370.
• Therefore, it used the President’s powers under Article 370(1)(d) to amend Article 367 by replacing the term “Constituent Assembly of the State” referred to in Article 370(3) with the term “Legislative Assembly of the State”.
• This allowed for the amendment of Article 370 without requiring the concurrence of the Constituent Assembly of the State.

FAQs about Article 370 of Indian Constitution

Read also:- Analysis of Article 13 of the Indiangene Constitution

Article 370 of Indian Constitution,Article 370 of Indian Constitution