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Understanding the Abrogation of Article 370: Origin and Impact

R. Sai Spandana | 29th Jul 2023

The Supreme Court will decide the extent of the Union’s powers to make laws for Jammu and Kashmir and abrogate Article 370.

After almost four years of repose, the Supreme Court is set to hear the challenge to the abrogation of Article 370 next week. The Court’s decision will have practical ramifications on the extent of Jammu and Kashmir’s autonomy and the Union’s powers to alter it. 

Art. 370 granted ‘temporary’ special status to Jammu and Kashmir. From August 2, 2023, five senior most judges of the top Court— Chief Justice D.Y. Chandrachud , S.K. Kaul , Sanjiv Khanna , B.R. Gavai and Surya Kant will hear a batch of petitions challenging the Union’s 2019 Orders which effectively abrogated this special status given to the State. 

The Origins of Jammu and Kashmir’s Unique Status

In 1947, following the India-Pakistan partition, Jammu and Kashmir, a princely state—with a Muslim majority and a Hindu ruler—that shared a long border with the two countries, witnessed high tensions with both India and Pakistan coveting it. The erstwhile ruler of the State of Jammu and Kashmir, Maharaja Hari Singh was in a dilemma . He neither wanted to join the newly democratic India nor was he inclined to side with the Muslim-majoritarian Pakistan. He wanted Kashmir to remain an independent State. 

On October 24, 1947, Singh appealed to India for military protection against threats and attacks from Pakistan. In return, he would cede Jammu and Kashmir to India. The result was the signing of the ‘ Instrument of Accession ’ (IoA) by which Singh, on October 27th, 1947, acceded Jammu and Kashmir to India. However, terms and conditions applied. India would not be given complete control over the State.

As per this instrument, India’s Parliament could enact laws only on three subject matters—defence, external affairs and communications. Everything else was left to the State of Jammu and Kashmir. Further, the State was not bound by the Constitution of India (which was being drafted at that time). The IoA also stated that it could not be amended by the Indian government unless a supplement to the IoA allowed it.

Contents of Article. 370

The constituent assembly introduced Article 370 (Draft Art. 306A) to give effect to the IoA. This Article is titled ‘Temporary provisions concerning the State of Jammu and Kashmir’ . Its purpose was to enable Jammu and Kashmir to transition from an independent princely state to a democratic State of India. 

In essence, this Article did three things: 

• It limited the power of the Indian Parliament to make laws for Jammu and Kashmir to the three subjects mentioned in the IoA—defence, external affairs and communications.
• It stated that except for Article 1 , the Constitution of India did not apply to Jammu and Kashmir. Article 1 states that India is a Union of States. 
• It stated that this Article could only be amended by the President with the consent of the Constituent Assembly of Jammu and Kashmir. Even though Jammu and Kashmir’s Constituent Assembly would cease to exist once the State’s Constitution came into being, the power to amend Article 370 was given only to the Constituent Assembly and not to its legislative assembly. Therefore, arguably , this Constituent Assembly was meant to decide the fate of Article 370 once and for all. 

The Establishment and Dissolution of Jammu and Kashmir’s Constituent Assembly

On October 31, 1951, Jammu and Kashmir’s Constituent Assembly was established . In 1956, this Assembly created the Constitution for Jammu and Kashmir which declared that ‘Jammu and Kashmir is and shall be an integral part of the Union of India’. 

This Assembly abolished the Maharaja system and established an Officer named ‘ Sadar-i-Riyasat’ as Head of the State. It said nothing about the abrogation or modification of Article 370. 

After drafting the State’s Constitution, the Constituent Assembly was permanently dissolved on January 26, 1957. In theory, this meant that the President of India could no longer modify or repeal Article 370 unless a new Constituent Assembly was created. How then did the Union government abrogate this Article in 2019?

The Abrogation Process

The election manifesto of the ruling Bharatiya Janata Party (BJP) for the 2009 , 2014 and 2019 General Elections affirmed its intention to abrogate Article 370. After winning the election, the BJP government dissolved Article 370 with two Presidential Orders— CO 272 and CO 273 on August 5 and August 6, 2019, respectively. 

The first Order issued on August 5, 2019, amended Article 367 which dealt with the interpretation of the Constitution. The Order stated that the phrase ‘Constituent Assembly’ under Article 370 shall be read as ‘Legislative Assembly’ of the State. 

At the time, Jammu and Kashmir was under President’s Rule, by which its Legislative Assembly and Governor were replaced with the Union Parliament and the President. Therefore, the ‘Legislative Assembly’ of the State was the Union Parliament. In other words, the President could modify or abrogate Article 370 at the request of the BJP-led Parliament. 

Immediately after this Order, a Statutory Resolution was passed by both Houses of Parliament recommending that Article 370 be dissolved. 

The next day, on August 6, 2023, the President issued the second Order which held that Article 370 ceased to operate and that Jammu and Kashmir was a part of the Union of India. 

Reorganisation of the State

Following the abrogation of Article 370, on August 9, 2019, Parliament passed the Jammu and Kashmir Reorganisation Act , 2019. This Act bifurcated the State into two Union Territories —Jammu and Kashmir and Ladakh. The former had a legislative Assembly and the latter did not. 

Practical Implications: No More Special Status

The abrogation removes the special status granted to Jammu and Kashmir by the Constitution. This means that the Indian Parliament’s power to make laws for the newly formed Union Territories is no longer restricted to three subjects. The Constitution and other territorial laws of India apply to these two territories as they would to any other State and Union Territory in the Country. The Constitution of Jammu and Kashmir is redundant and the region no longer has a separate flag. 

Further, the exclusive benefits granted to ‘ permanent citizens ’ of Jammu and Kashmir to own and acquire property within the region stands dissolved.

Reactions and Responses

The constitutional status of an area plagued with decades of unrest changed overnight. 

Former Jammu and Kashmir Chief Minister Mehbooba Mufti said that the decision to abrogate Article 370 was a ‘ sinister one’ taken to alter the demographics of a Muslim-majoritarian State. She said the abrogation removed the autonomy granted to the State in 1947.

Senior Congress Party member P. Chidambaram criticised the move stating that a State had never been reduced to a Union Territory before. Earlier in 2023, Congress leader Jairam Ramesh said his party is demanding the restoration of Jammu and Kashmir’s statehood. 

Internationally, Pakistan and China opposed the abrogation stating India had breached their territorial sovereignty. The BJP government maintained that this issue concerned only India and no international borders were breached. 

The Challenge at the Supreme Court

Immediately after the abrogation, several individuals and organisations around the Country moved the Supreme Court challenging its constitutionality. Their arguments are two-fold. 

First, the abrogation breached the constitutional special status granted to Jammu and Kashmir. By modifying the meaning of ‘constituent assembly’ to abrogate the Article, the Union indirectly did what it directly could not. 

Second, they argue that the reorganisation of the State is a violation of Article 3 of the Constitution. Article 3 of the Constitution does not give the Parliament powers to downgrade federal democratic States into a less representative form such as a Union Territory.

Initially a 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench in . From October 1, 2019, Justice N.V. Ramana’s 5-Judge Bench heard arguments that the case must be referred to a larger bench. Ultimately, the Bench refused the plea for reference. This was in March 2020. The case saw no further movement till 2023. 

On July 11, 2023, the Supreme Court scheduled to hear the batch of petitions challenging the abrogation on August 2nd, 2023.

Why Does this Matter?

The implications of the top Court’s decision in the case will be complex. The Court will decide if the Union’s abrogation of Article 370 and the way it was effectuated (by altering Article 367 of the Constitution through a Presidential Order) is valid. 

By this, the Court will clarify the extent of powers of the President and Parliament to make laws for Jammu and Kashmir and also state what the proper way to do so is. The Court’s decision will influence the nature of Union-State relations, the contours of Article 3, and the limits of federalism. 

If the abrogation is found to be unconstitutional, will the Supreme Court reverse the reorganisation of the State?  Can it reinstate Jammu and Kashmir’s constitutionally granted special status? In any case, the Court will have to consider the ground impact of the four years that it has taken for the top Court to hear the case. The Court’s decision will have far-reaching implications on all political, legal and regional developments that have occurred in the State these few years. It will also have a ripple effect on the geo-political relations in the subcontinent. 

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Supreme Court to Hear Challenges to the Abrogation of Article 370 after 4-year Delay

As the Supreme Court answers large constitutional questions, the will of the people of Jammu and Kashmir hangs in the balance.

Gauri Kashyap

United States Institute of Peace

Home ▶ Publications

India’s Kashmir Conundrum: Before and After the Abrogation of Article 370

Wednesday, August 5, 2020 / By: Sameer P. Lalwani, Ph.D. ;  Gillian Gayner

Publication Type: Special Report

On August 5, 2019, the government of India revoked the constitutional autonomy of its Muslim-majority state of Jammu and Kashmir. This report—based on field interviews, new data collection, and extensive research— focuses on the revitalized insurgency and mass uprising between 2013 and 2019, explains how the Kashmir conflict evolved to a point that contributed to India’s extraordinary political gambit, and lays out both New Delhi’s strategy and the challenges the government faces going forward.

• Since 2013, mass resistance and armed insurgency have returned and grown in India’s Kashmir Valley, partly in response to the government’s failed strategy.
• Resistance has involved mass participation in “quasi-violence” that involves semi-organized pressure by unarmed civilians to provoke, frustrate, and impose costs on the state.
• New data on quasi-violence in the Kashmir Valley reveal substantial growth since 2013, at times even outpacing armed insurgency.
• New Delhi’s strategy fixated on kinetically degrading militant organizations to improve security, which fed local militant recruitment and depressed faith in democratic institutions.
• The government’s dramatic revocation of autonomy provisions for Jammu and Kashmir in 2019 minimized international penalties and preempted significant violent responses. Whether it replicates past political engineering or pursues revolutionary demographic engineering, the state is likely to face a resurgence of violent and quasi-violent resistance.
• U.S. influence is limited, but U.S. policymakers could encourage dialogue with all stakeholders and alert New Delhi to the challenges that Indian choices will pose for cooperation if it is indefinitely bogged down in Kashmir.

About the Report

This report focuses on India’s Muslim-majority state of Jammu and Kashmir in the wake of its revoked autonomy in early August 2019, how the evolving nature of the Kashmir conflict contributed to such a political gambit, and where the situation is headed. Supported by the Asia Center at the United States Institute of Peace, this report is based on extensive research, new data collection, and field interviews in the Kashmir Valley between 2012 and 2017.

About the Authors

Sameer P. Lalwani is a senior fellow and director of the South Asia Program at the Stimson Center, where he researches nuclear deterrence, interstate rivalry, crisis behavior, and counter/insurgency. Gillian Gayner was previously a research associate at the Stimson Center.

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Asia pacific | what is article 370, and why does it matter in kashmir.

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Asia Pacific

What is article 370, and why does it matter in kashmir.

By VINDU GOEL UPDATED Updated August 5, 2019

Disputed area

Kashmir, a mountainous valley that borders Pakistan and India, has been a center of conflict between the two nuclear-armed countries since the 1947 partition of British India.

At the time of the partition, the British agreed to divide their former colony into two countries: Pakistan, with a Muslim majority, and India, with a Hindu majority. Both nations covet Kashmir, which is Muslim majority, and occupy portions of it with military forces.

For decades, an uneasy stalemate has prevailed, broken by occasional military incursions, terrorist attacks and police crackdowns. But on Monday, the Indian government decided to permanently incorporate the territory it controls into the rest of India .

The administration of Prime Minister Narendra Modi revoked Article 370 of the Indian constitution, a 70-year-old provision that had given autonomy to the state of Jammu and Kashmir, which includes the Hindu-majority area of Jammu and the Muslim-majority Kashmir valley.

The government also introduced a bill to strip the region of statehood and divide it into two parts, both under direct control of the central government.

But Mr. Modi, a Hindu nationalist, had campaigned for re-election in part by stoking patriotic fervor against Muslim-led Pakistan. He promised the full integration of Kashmir, a cause which his party has championed for decades, and now he is delivering on that pledge.

Pakistan condemned India’s moves. Pakistan’s prime minister, Imran Khan, called on President Trump to follow through on an offer he made two weeks ago to mediate the Kashmir dispute.

What are the roots of the conflict?

In 1947, the sudden separation of the area into Pakistan and India prompted millions of people to migrate between the two countries and led to religious violence that killed hundreds of thousands.

afghanistan

Gilgit-Baltistan

Controlled by Pakistan

line of control

Controlled by India

Suicide bombing

Jammu and Kashmir

Left undecided was the status of Jammu and Kashmir, a Muslim-majority state in the Himalayas that had been ruled by a local prince. Fighting quickly broke out, and both countries eventually sent in troops, with Pakistan occupying about one-third of the state and India two-thirds.

The prince signed an agreement for the territory to become part of India. Regional autonomy, which was formalized through Article 370, was a key inducement.

Despite efforts by the United Nations to mediate the Kashmir dispute, India and Pakistan continue to administer their portions of the former princely territory while hoping to get full control of it. Troops on both sides of the so-called “line of control” regularly fire volleys at each other.

Muslim militants have frequently resorted to violence to expel the Indian troops from the territory. Pakistan has backed many of those militants, as well as terrorists who have struck deep inside India — most brutally in a four-day killing spree in Mumbai in 2008, which left more than 160 people dead.

What is Article 370?

Article 370 was added to the Indian constitution shortly after the partition of British India to give autonomy to the former princely state of Jammu and Kashmir until a decision was made about its rule. It limited the power of India's central government over the territory. A related provision gave state lawmakers the power to decide who could buy land and be a permanent resident -- a provision that irked many non-Kashmiris.

Although it was intended to be temporary, Article 370 says that it can only be abrogated with the consent of the legislative body that drafted the state constitution. That body dissolved itself in 1957, and India's Supreme Court ruled last year that Article 370 is therefore a permanent part of the constitution.

The Modi government disagrees and says the president of India, who is beholden to the ruling party, has the power to revoke the article.

Why did the conflict heat up this year?

The immediate cause was the Feb. 14 suicide bombing by a young Islamic militant, who blew up a convoy of trucks carrying paramilitary forces in Pulwama in southern Kashmir.

Indian aircraft responded to that attack by flying into Pakistan and firing airstrikes near the town of Balakot . The Indian government claimed it was attacking a training camp for Jaish-e-Mohammed, the terrorist group that claimed responsibility for the bombing.

The next day, Pakistani and Indian fighter jets engaged in a skirmish over Indian-controlled territory , and Pakistani forces downed an Indian aircraft — an aging Soviet-era MiG-21 — and captured its pilot. It was the first aerial clash between the rivals in five decades .

Pakistan quickly returned the pilot , easing the diplomatic tensions. But Mr. Modi exploited a wave of a nationalist fervor over the Pulwama attack as part of his re-election campaign that helped his Bharatiya Janata Party win a sweeping victory .

Pakistan’s prime minister, Imran Khan, was elected last year with the backing of his country’s powerful military, and he wants to show that he can stand up to India, even as his country’s economy is so weak that he sought bailouts from Saudi Arabia and China.

Will the United States and other global powers get involved?

On July 22, Mr. Trump hosted Mr. Khan at the White House. Although the meeting was focused on how to end the war in Afghanistan, Mr. Trump told reporters that Mr. Modi had asked him to help mediate the Kashmir dispute . Mr. Khan welcomed his involvement. The Indian government denied making any mediation request and has long insisted on direct negotiations with Pakistan to resolve the dispute.

Under Mr. Trump, American foreign policy has shifted away from Pakistan, a longtime recipient of American aid, toward India, which the administration views as a bulwark against China’s rising influence in Asia.

China, meanwhile, has become a close ally and financial patron of Pakistan . The Chinese government recently urged India and Pakistan to settle their conflicts through bilateral discussions. China shares a border with Jammu and Kashmir state, and India and China still do not agree on the demarcation line.

What is likely to happen next?

The constitutional changes, issued through a presidential order, could face legal challenges. Last year, India’s Supreme Court ruled that Article 370 could not be abrogated because the state-level body that would have to approve the change went out of existence in 1957.

“My view is that this presidential notification is illegal,” said Shubhankar Dam, a law professor at the University of Portsmouth in Britain and the author of a book on executive power in India. “The question is one of jurisdiction: Does the government of India have the power to do this?”

Pakistan, for its part, said it will “exercise all possible options to counter the illegal steps” taken by India.

Mr. Modi’s moves to integrate Kashmir into India are likely to be popular in much of the country. But there is widespread panic in Kashmir, where there have been decades of protests against Indian rule.

More on NYTimes.com

Society and Politics of Jammu and Kashmir pp 53–77 Cite as

Article 370 and 35A: Origin, Provisions, and the Politics of Contestation

• Aijaz Ashraf Wani 2 ,
• Imran Ahmad Khan 2 &
• Tabzeer Yaseen 3  
• First Online: 28 November 2020

340 Accesses

In August 2019, the Indian government revoked the autonomous status of Jammu and Kashmir (J&K), protected by Articles 370 and 35A of the Indian constitution. The special provisions had been in place since October 1947, when its ruler acceded to India through a conditional Instrument of Accession. Although there has been significant media coverage of the abrogation and subsequent military siege in Kashmir, there remains scant awareness regarding the significance of the articles for Kashmiris. This chapter provides a historical account of how the articles came into existence and discusses why they were so highly contested. It allows the reader to appreciate better the implications of the abrogation of J&K’s special provisions and why such political fallout has come in its wake.

• Jammu and Kashmir
• Article 370
• Article 35A
• State subject
• Constitutional amendments

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Wani, A.A., Khan, I.A., Yaseen, T. (2021). Article 370 and 35A: Origin, Provisions, and the Politics of Contestation. In: Hussain, S. (eds) Society and Politics of Jammu and Kashmir. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-56481-0_3

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UAW Membership Fell 3.3% in 2023 to 370,000 Workers

FILE PHOTO: A man holds United Auto Workers (UAW) signs in Dearborn, Michigan, U.S. March 7, 2020. REUTERS/Lucas Jackson/File Photo

By David Shepardson

WASHINGTON (Reuters) -Membership in the United Auto Workers union fell 3.3% in 2023 to 370,000, its lowest level since 2009, according to a report filed on Friday with the U.S. Labor Department.

The UAW is "clear-eyed that our union and many of our industries have been going in the wrong direction for years," a union spokesperson said, adding that is "why we’ve made a historic commitment to organizing the rest of the auto industry, tens of thousands of higher education workers, and everyone in our core industries from heavy truck to agricultural implements to aerospace."

After winning record new contracts with General Motors Ford and Stellantis, the UAW launched a first-of-its-kind campaign to organize the entire non-union auto assembly sector in the U.S., initiating simultaneous organizing efforts at non-union operations owned by Volkswagen, Toyota, Mercedes-Benz, Hyundai and other automakers.

UAW membership is down from 397,000 at the end of 2020 and from its 1970 high of 1.5 million members. It fell to 355,000 in 2009 during the Great Recession and the U.S. auto sector restructuring.

Next month, the UAW's organizing effort gets a big test when workers at Volkswagen's Chattanooga, Tennessee, assembly plant will vote April 17-19 on whether to join the union.

Photos You Should See

Pablo Di Si, head of Volkswagen's North American business, told Reuters this week the company will remain neutral ahead of the organizing vote. "Being neutral does not mean being silent," he said, saying the company would correct misinformation so employees can have the facts "and make their own decision."

For more than two decades, the UAW has tried and failed to organize non-union U.S. auto assembly plants established by Asian and European automakers, mostly in southern states with laws and political leaders that are hostile to unions. The UAW has lost two votes at VW's Tennessee plant since 2014.

Winning a vote to organize the plant would be a significant milestone for the union in an election year where both U.S. President Joe Biden and his presumptive Republican rival Donald Trump are aggressively courting votes from UAW members in Michigan and other industrial swing states.

(Reporting by David Shepardson; Editing by Paul Simao and Chizu Nomiyama)

Copyright 2024 Thomson Reuters .

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