Article 370 and the Status of Jammu and Kashmir

The marginal note is worth quoting, because it is the beginning of any answer: "Temporary provisions with respect to the State of Jammu and Kashmir."

What the arrangement produced in practice

A separate State Constitution. The Constituent Assembly of Jammu and Kashmir framed a Constitution which came into force on 26 January 1957 and was the only State Constitution in India.

A separate application of the Indian Constitution. The Constitution (Application to Jammu and Kashmir) Order 1954 applied a large part of the Indian Constitution to the State with exceptions and modifications, and it inserted article 35A, which permitted the State Legislature to define permanent residents and to confer special rights on them in relation to employment, immovable property, settlement and scholarships.

A different residuary power. Under the State's own arrangement the residuary power lay with the State, which is the reverse of article 248.

And a name that had legal significance. The State was listed in the First Schedule and its Governor was called Sadar-i-Riyasat and its Chief Minister Prime Minister until 1965.

The debate about its character, stated fairly

The case that it was temporary. The marginal note says so, it sits in Part XXI among temporary and transitional provisions, and clause (3) provides a mechanism for it to cease.

The case that it had become permanent. Clause (3) required the recommendation of the Constituent Assembly of the State, and that Assembly dissolved itself on 25 January 1957 without making any recommendation, so the condition could never be satisfied. On that reading the article had become a permanent feature by the passage of time.

The Supreme Court has now answered it, and the answer is in the next chapter.

A worked example

A student is asked the 2015 note: "Status of Jammu and Kashmir in the Indian federal scheme." What does a full answer contain?

The accession, with dates. The Instrument of Accession executed on 26 October 1947 and accepted on 27 October 1947, ceding defence, external affairs and communications.

The constitutional expression of it. Article 370, in Part XXI, marginal note "Temporary provisions", with clause (1)(b) limiting Parliament's legislative power, clause (1)(d) applying the rest of the Constitution only by Presidential order with the State's concurrence, and clause (3) providing for it to cease on the recommendation of the State's Constituent Assembly.

What it produced. A separate State Constitution in force from 26 January 1957; the Order of 1954 and article 35A; a residuary power with the State.

The argument about its character. Temporary by its terms and its placement; arguably permanent because the body whose recommendation clause (3) required had dissolved in 1957.

And then what happened, which is the part a candidate must now add, and which is the next chapter.

The federal point the answer should close on. Jammu and Kashmir was the strongest example of asymmetry the Indian Constitution has contained, and the Supreme Court has since held that it was asymmetry rather than sovereignty. That is the sentence that turns a narrative into a constitutional answer.

The case

In In re Article 370 of the Constitution, decided on 11 December 2023. Facts. Challenges to Constitutional Orders 272 and 273 of 5 and 6 August 2019 and to the Jammu and Kashmir Reorganisation Act 2019.

Held, among much else worked in the next chapter. The State of Jammu and Kashmir retained no element of internal sovereignty after the Instrument of Accession and the Proclamation of 25 November 1949 by the Yuvraj, and that article 370 was a feature of asymmetric federalism and not of sovereignty; and that article 370 was a temporary provision, both because of its historical context and because of its placement in Part XXI. It also held that the Constitution of Jammu and Kashmir is inoperative and redundant.

Why it matters here is that it settles the debate set out above: the article was temporary, and the State was never sovereign after 1947.

Distinctions

What it does NOT mean

It does not mean Jammu and Kashmir was sovereign. The Supreme Court has held expressly that it retained no element of internal sovereignty after accession.

It does not mean article 370 was the only asymmetry. Articles 371 and 371A to 371J and the Fifth and Sixth Schedules were and are asymmetry too.

It does not mean article 35A was part of article 370. It was inserted by the Presidential Order of 1954, made under article 370(1)(d), which is why its validity was argued as a question about the scope of that clause.

And it does not mean the arrangement was static. More than forty Constitution Orders were made between 1950 and 2019, progressively extending the Indian Constitution to the State, so the position in 2019 was very different from that in 1950.

Quick revision

Instrument of Accession executed 26 October 1947, accepted 27 October 1947, ceding defence, external affairs and communications. Article 370, Part XXI, marginal note "Temporary provisions with respect to the State of Jammu and Kashmir": clause (1)(b) limited Parliament's legislative power to the accession subjects and what the President specified with the State's concurrence; clause (1)(c) applied articles 1 and 370; clause (1)(d) applied the rest of the Constitution only by Presidential order with exceptions and modifications; clause (2) required concurrence given before the Constituent Assembly was convened to be placed before it; clause (3) let the President declare the article inoperative on the recommendation of the State's Constituent Assembly. The State had its own Constitution from 26 January 1957, its own residuary power, and article 35A on permanent residents inserted by the 1954 Order. The Constituent Assembly dissolved on 25 January 1957 without recommending, which is the basis of the argument that the article had become permanent. In re Article 370: the State retained no internal sovereignty after accession, article 370 was asymmetric federalism and not sovereignty, it was a temporary provision, and the State Constitution is inoperative and redundant.

Test yourself

1. What did the Instrument of Accession cede, and when? Defence, external affairs and communications; executed by the Maharaja on 26 October 1947 and accepted by the Governor-General on 27 October 1947.

2. Set out the effect of article 370(1)(b) and (1)(d). Clause (1)(b) limited Parliament's power to make laws for the State to the matters corresponding to the Instrument of Accession, declared by the President in consultation with the State Government, and to such other List matters as the President specified with the State Government's concurrence. Clause (1)(d) applied the other provisions of the Constitution to the State only by Presidential order, subject to such exceptions and modifications as he specified.

3. What was the condition in clause (3), and why did it become controversial? That the recommendation of the Constituent Assembly of the State was necessary before the President could declare the article inoperative. The Assembly dissolved itself on 25 January 1957 without making any recommendation, so it was argued that the condition could never be satisfied and the article had become permanent.

4. What was article 35A and where did it come from? A provision permitting the State Legislature to define permanent residents and to confer special rights on them in employment, immovable property, settlement and scholarships. It was inserted by the Constitution (Application to Jammu and Kashmir) Order 1954, made under article 370(1)(d).

5. Name three ways the State's position differed from an ordinary State's. It had its own Constitution in force from 26 January 1957; the Indian Constitution applied to it only as extended by Presidential order; and the residuary power lay with the State rather than with the Union.

6. What did the Supreme Court hold in 2023 about sovereignty and about the article's character? That the State retained no element of internal sovereignty after the Instrument of Accession and the Proclamation of 25 November 1949, that article 370 was a feature of asymmetric federalism and not of sovereignty, and that it was a temporary provision, as its historical context and its placement in Part XXI show.