Article 370 of the Constitution of India

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Article 370 of the Constitution of India, a constitutional provision, abrogated in 2019, that granted special status and a high degree of autonomy to Jammu and Kashmir state, India. Included in the Constitution of India when it came into effect in 1950, Article 370 was contentious from the start and regarded as divisive because of the privileges given to Jammu and Kashmir. It was rendered inoperative along with the removal of Jammu and Kashmir’s statehood in 2019. The region was reorganized into two separate union territories—Jammu and Kashmir, and Ladakh.

Kashmir’s accession to India and aftermath

The genesis of the Kashmir problem dates to India’s independence from British rule and the partition of the region into two countries—India and Pakistan—in August 1947. The erstwhile princely state of Jammu and Kashmir was given the choice to join either country. Hari Singh, the Hindu maharaja (meaning “great king”) of the Muslim-majority region, was slow to make a decision, hoping to preserve his state’s sovereignty. In October 1947 Jammu and Kashmir was attacked by armed local Pashtun tribesmen, prompting the maharaja to sign a legal document called the Instrument of Accession. The document made Kashmir a part of India; in return, the state received immediate military assistance against the armed rebellion.

This precipitated the first war fought by India and Pakistan over control of Kashmir—India moved to confirm the accession to its union of states while Pakistan saw the region as a natural extension of itself, being demographically similar. With the intervention of the United Nations, a ceasefire was called in January 1949; the ceasefire line was later converted into a “line of control,” though neither country recognizes it as an international boundary.

India and Pakistan subsequently engaged in armed conflict over the Kashmir issue in 1965. Shelling continued intermittently over the line of control until the early 21st century. Militant organizations began emerging in the 1980s, and by the 1990s militancy had evolved into insurgency. In the early 1990s the state’s Hindu residents, known as Kashmiri Pandits, were forced out of the Muslim-majority Vale of Kashmir in a mass migration following targeted violence and threats. In May 1999 India and Pakistan fought another war in the Kargil sector of the region, after Pakistani fighters were discovered to have infiltrated Indian territory. Pakistani forces withdrew in July. Kashmir continues to be a troubled region with tensions erupting periodically.

Draft Article 306A becomes Article 370

In 1949 the Constituent Assembly in charge of drafting the new Indian Constitution debated the inclusion of an article related to Jammu and Kashmir. The provision, debated as draft Article 306A, was based on the Instrument of Accession, under the terms of which the central government’s jurisdiction was restricted to defense, external affairs, and communication—all other matters would be governed by the state. The proposed provision was drafted chiefly by N. Gopalaswami Ayyangar (former prime minister of Jammu and Kashmir) and Sheikh Abdullah (first elected prime minister of the state after Kashmir’s accession). It granted special privileges that reaffirmed Jammu and Kashmir’s semiautonomous status. It also provided for a constituent assembly in the state without the consent of which no changes to the constitutional provision could be made.

The draft Article 306A was opposed by certain members of the central Constituent Assembly, on the grounds that political concessions could not be made for just one of the 500-odd princely states joining India. Some were concerned that Kashmir’s special status would prevent it from fully integrating with the country. Vallabhbhai Patel, the first minister of home affairs for India, was among those who voiced reservations about the privileges granted to Kashmir. Ayyangar, backed by Indian Prime Minister Jawaharlal Nehru, argued that the special provision was made necessary by the ongoing dispute over Kashmir. Negotiations were long, eventful, and complicated. The draft Article 306A, however, was eventually adopted without amendments and became Article 370 of the Indian Constitution. It was included under Part XXI of the Constitution, a section containing “Temporary, Transitional, or Special Provisions.” The Constitution of India came into force on January 26, 1950.

Under Article 370, the Indian Constitution was applicable only in part to the state—most other provisions were not applicable, while a small number were partially applicable or applicable in modified form. Broadly, the special privileges granted to Jammu and Kashmir were:

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• The right to its own constitution, drafted by its own constituent assembly.
• The Central government’s powers over Jammu and Kashmir were limited to the subjects of defense, external affairs, and communications.
• Other constitutional powers of the central government could be applied to Jammu and Kashmir only with the state government’s concurrence.
• The state government’s concurrence would be conditional to ratification by the state’s constituent assembly.
• Article 370 could be abrogated or amended only on the recommendation of the state’s constituent assembly.

Delhi Agreement of 1952

Significant amendments were made to Article 370 in the years immediately following the adoption of the Indian Constitution. The Jammu and Kashmir constituent assembly was elected in 1951 and approved the abolition of the state’s monarchy. During this time, tensions erupted between Sheikh Abdullah and the Hindu-led Jammu Praja Parishad political party over the status of Jammu and Kashmir—Abdullah’s government wanted to preserve the state’s autonomy, while the Hindu faction favored full integration with India. In response, Nehru’s government summoned a delegation from the state and subsequent negotiations resulted in the Delhi Agreement of 1952, a political accord between the state and central governments that intended to balance the sovereignty of Jammu and Kashmir and its special constitutional relationship with India.

The Delhi Agreement of 1952 ratified the abolition of Kashmir’s monarchy, the elected head of government retained the title of prime minister rather than chief minister, the state was allowed its own flag (but the national flag was to be flown as well), the fundamental rights enshrined in the Indian Constitution were extended to Kashmiris, the Supreme Court was given limited jurisdiction in the state, and emergency powers could be applied in case of external aggression. A presidential order was issued in 1952 officially replacing the monarch with a post titled sadr-i-riyasat (“head of state”), to be elected by the state’s legislative assembly; Hari Singh’s son Karan Singh, the acting regent of the time, was elected to the post. The offices of sadr-i-riyasat and prime minister were replaced by those of governor and chief minister in 1965.

Article 35A added to the Constitution

In 1954 a second presidential order carried forward the Delhi Agreement and implemented financial provisions that had been discussed. Article 35A was added to the Constitution, allowing the Jammu and Kashmir legislature to define “permanent residents” of the state. Under Article 35A, only permanent residents could buy land, vote, and run for office. Government jobs and state-sponsored benefits such as free health care were also restricted to permanent residents. These provisions were severely criticized as discriminatory, including against Jammu and Kashmir’s female population who could be disqualified from permanent residency by marrying out of state.

On January 26, 1957, the Jammu and Kashmir constitution came into force and contained this declaration:

“The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”

The Jammu and Kashmir constituent assembly, having achieved its goal, had been dissolved a day earlier. The dissolution formed the basis of several petitions filed in the courts over the next few decades, challenging the legality of certain pieces of legislation. These petitions argued that without the constituent assembly’s consent, no amendments could be made to laws and constitutional provisions related to Jammu and Kashmir.

Amarnath land transfer controversy

Over time Articles 370 and 35A became increasingly divisive. There was widespread discontent over the privileges accorded to Jammu and Kashmir and the restriction on land purchasing to permanent residents only. In 2008 the Amarnath land transfer controversy ignited fresh unrest in a state ravaged by decades of violence. In May that year, the Indian National Congress–led central government and the Jammu and Kashmir government reached an agreement to transfer nearly 100 acres of forested land to the board of the Amarnath cave temple, an important Hindu shrine in the Vale of Kashmir and the site of an annual pilgrimage. The land was intended to be used for temporary shelters and facilities for pilgrims.

Communal agitation erupted across the state, with separatist leaders opposing the allotment of land in a Muslim-majority area to Hindus on the grounds that it would impact the demographic composition intended to be protected by Article 370. The Jammu and Kashmir government reversed its decision to allot the land, prompting more protests, this time from Hindu residents of the Jammu region. The Amarnath controversy kept Jammu and Kashmir in a state of turmoil for the next few years—violence broke out occasionally, and a proposed road to the shrine triggered more protests as well as environmental concerns.

Abrogation of Article 370

In 2014 the pro-Hindutva Bharatiya Janata Party (BJP) included the revocation of Jammu and Kashmir’s special status in its election manifesto. The BJP won a resounding victory in the 2014 general elections to the Lok Sabha (the lower house of the Indian parliament) and also formed a coalition government with the People’s Democratic Party (PDP) in Jammu and Kashmir after the state assembly elections that year. In 2018 it exited its alliance with PDP in Jammu and Kashmir, causing the collapse of the government. A period of president’s rule followed. The BJP’s poll promise to abrogate Article 370 was repeated ahead of the 2019 Lok Sabha elections—this time, the BJP delivered.

On August 6, 2019, two months after prime minister Narendra Modi and the BJP had been reelected to power, both houses of parliament passed a resolution abrogating Articles 370 and 35A. Indian President Ram Nath Kovind issued an order that declared that Article 370 would cease to operate except a clause which said that all provisions of the Indian Constitution would apply fully to Jammu and Kashmir. A key challenge in abrogating Article 370 was the dissolution of the Jammu and Kashmir constituent assembly in 1957: without the constituent assembly’s consent, Article 370 could not be modified in any manner. To circumvent this, a presidential order was issued on August 5, 2019, in which the term “constituent assembly” in Article 370 was redefined as “legislative assembly.” At the same time, separate legislation was enacted by which the state was downgraded and bifurcated into Jammu and Kashmir union territory and Ladakh union territory.

Impact of the abrogation

The abrogation of Article 370 proved to be as controversial as its existence. The stated intent of the BJP government in rendering the provision inoperative was to integrate Jammu and Kashmir fully with India, to confront insurgency and separatism in the region, and to improve development. Critics, however, argued that the motive was to alter the region’s Muslim-majority demographic. By removing the definition of “permanent residents,” all Indian citizens were allowed to purchase land in Jammu and Kashmir, thus allowing for an influx of non-Kashmiris into the union territory, possibly meaning more Hindus moving into the majority-Muslim region. Criticism was also directed at the process by which the abrogation was achieved and at the removal of Jammu and Kashmir’s statehood.

In the following months, several petitions challenging the constitutional validity of the abrogation of Article 370 were filed in the Supreme Court. The matter was referred to a constitutional bench, which is a group of five or more judges who decide cases related to interpretations of the Constitution. In 2023 the Supreme Court upheld the repeal, ruling that Jammu and Kashmir’s internal sovereignty was no different than the other Indian states, and that the government had not exceeded its powers in abrogating a provision that was temporary in nature. In May 2024 the Supreme Court dismissed petitions seeking a review of the top court’s previous ruling.