Scrapping of Article 370 of Indian Constitution: A Historical Mistake?


Are the deaths of thousands of people justified only on the ground that a state is having special provisions under the constitution of the country?

Since 2018, a report from NEWS18 says that, year 2018 is the bloodiest year in history of J&K with a net rate of 457 causalities. This includes 86 civilians, 95 SFs & 276 militants, in year 2008 the number was 541 which included 69 civilians, 90 SFs personnel and 382 militants to 117 in 2012 comprising of 16 civilians, 17 SFs and 84 militants. The militancy in J&K is because of special status to J&K under article 370 and 35A of constitution of India as the militants are being funded by Pakistan’s terrorist’s organizations or the government itself under the nose of Indian government. The Pakistan wants to access to the whole of J&K mainly the Kashmir valley as they think that the Muslim population in Kashmir valley is denser and being an Islamic country, they want to conquer the valley to make it a part of Pakistan as they want it since 1947.

Special Status of J&K:

The state of J&K enjoys a special status under the constitution of India. Article 370 gives the state the power of its own constitution, own flag, own laws and moreover its state legislative assembly have the power to deal exclusively with three main issues viz. Defence, External affairs and telecommunication without the interference of the central government. The Chief Minister of J&K can only be a Muslim and elections in J&K are likely to held after every 6 years. Article 35A provides that no other citizen of any part of India can buy land in J&K nor any other citizen can apply for job and reservation there. Further if the central government wants to make any changes in the status of J&K, then centre needs to take concurrence and consultation of J&K government without which no change can be made.

How the inclusion of Article 370 was made?

At the time of independence from britishers, India got divided into two sovereign countries, India and Pakistan on Aug 15, 1947 and Aug 14, 1947 respectively. The J&K was a different country at that time headed by Raja Hari Singh. Indian leader Sardar Vallabh Bhai Patel tried to convince the Raja to sign the Instrument of Accession with India. But the Raja till Oct 26, 1947 did not accept the idea of accession with India. The Raja accepted the proposal when Pakistan’s PM Mohammad Ali Jinnah commanded Pakistan’s Pashtun Tribal militias to attack on J&K for its accession with Pakistan. After this command, the Raja beg for help from India to save J&K. Lord Mountbatten said that without accession, how India can fight on behalf of J&K. At last on Oct 26, 1947, Instrument of Accession was brought by Mehar Chand Mahajan and VP Menon to Raja Hari Singh. The Raja signed the instrument and war was fought between India and Pakistan. About 1100 soldiers of Indian army and about 4000 of Pakistan’s soldiers were martyred in the war. But at last India won the war and ceasefire along the line LOC was enforced by UN resolution on Dec 31, 1948. The war remained in force from Oct 26, 1947 to Oct 31, 1948. After that the Delhi Understanding meeting was held between Sheikh Abdullah (popular leader of J&K at that time) , Sardar Patel and Pandit Jawahar Lal Nehru as how to include J&K in India. Then when the constituent assembly prepared the informal draft for constitution of India they added Article 306(A) which in turn made article 370 in Part 21 of final draft of constitution. This article was added on demand of Sheikh Abdullah to provide the special provisions to J&K in the constitution of India after its accession with India. This article stands for temporary and transitional provisions. The J&K constituent assembly took 6 years to prepare the constitution for J&K which was finally prepared and implemented on Nov 26, 1957.

Sheikh Abdullah became the first Chief Minister of J&K whose government was dissolved by Sadar-e-Riyaasat Karan Singh, son of Raja Hari Singh. In 1954, a Presidential order was passed on May 14 under article 371 of the constitution named as Presidential Order (J&K), 1954 which added article 35A to the special status of J&K. The article 35A is not mentioned anywhere in the constitution of India. It is just by a Presidential Order by which this article came into force.

Why is Pakistan affected?

Both India and Pakistan claims the entirety of J&K. India controls approximately 55% of land of the region and 70% of population and Pakistan control the remaining 15% while China controls 15%. India administers Jammu, The Kashmir Valley, Ladakh and Siachen glacier. Pakistan administers Azad Kashmir (Pak occupied Kashmir) and Gilgit- Baltistan. In the desrire of more, Pakistan attacked India three times to seize Kashmir valley. In 1967,1971 and 1999, Pakistan attacked on India even after ceasefire resolution passed by UN. All of the three times Pakistan is defeated by India. The Simla agreement was also signed by both of the countries to keep the Kashmir issue bilateral.

What happened when NDA government came into force?

In 2014, Narendra Modi became the Prime Minister and NDA came into power. The scrapping of article 370 was in their manifesto and country voted for it and supported NDA with full majority. In year 2019, the NDA government scrapped Article 370 and 35A and abrogated the special status of J&K and fulfilled their promise.

Also Read – What is Article 370? Why Dr. B.R Ambedkar refused to draft Article 370?

 How the Scrapping of Article 370 is done?

In the month of June, the State Legislative Assembly of J&K was dissolved when BJP withdrew its support from PDP which was a coalition government. On June 20,2018 the governor of J&K gave suggestion to central government for enforcing Governor’s rule on J&K for 6 months. After the governor started ruling the time period of six months was extended and the powers were conferred to the President. After that on Dec 19,2018, on report of governor of J&K, the President under Article 356(b) passed a Presidential Order that the powers of legislative assembly of state shall be exercisable by or under the authority of parliament. On Aug 5, 2019, the historical day came on the door of J&K. Prior to this day, 48,000 soldiers were deployed in J&K, Popular leaders of J&K were house arrested, communication services were stopped, Amarnath Yatra was stopped and many more on Aug 5, 2019, Home Minister Amit Shah presented the Presidential order in which it was written that this order will supersede the Presidential Order of 1954, in Rajya Sabha with which Article 35A was ultimately revoked. Further by this order, clause 4 to Article 367 was added which says that constitution of India will be applicable to J&K as it is applicable to other states. After this Presidential order, two resolutions were moved before Rajya Sabha. First was under article 370(3) that President by public notification can declare the scrapping of article 370 inoperative. Now the question arises that prior recommendation of Constituent Assembly of state is necessary before such publication by President. But here the constituent assembly referred was dissolved in 1956 when the constitution was made for J&K and further by Presidential order of Dec 19,2018 under article 356(b) all the powers of state were with the Parliament .Therefore using these two articles, the Home Minister cleared that only clause 1 of article 370 will be applicable that  is mentioning article 238 which was already repealed by Constitution (Seventh Amendment) Act,1956.The second resolution was for Bifurcation of J&K into two Union Territories. The J&K will be with legislature and the other one is Ladakh without legislature and both will be run by Lieutenant Governors. The Parliament of J&K will be same as that of Puducherry. With all this, 164 Acts are repealed, primarily the Permit of Resettlement Act 1982, 166 are applicable as before like the Mata Vaishno Devi Vishwavidyalaya Act, Mata Vaishno Devi Shrine Act and 7 will be applicable after certain amendments of J&K.

A Mistake or Historical Decision?

The scrapping of article 370 is not violative of any constitutional procedure. It is done with due procedure. After Scrapping of Article 370, IPC, RTI Act, the reservation to STs will be given to the citizens of J&K who were abandoned from these privileges for more than 70 years. Unemployment and militancy will be curbed out of J&K as the centre has the full access to the state now. There will be only one flag for whole of India.

Political Parties in support of abrogation:

AAP, BSP, Shiv Sena, AIADMK, Shiromani Akali Dal, YSR Congress, Telugu Desan Party, Biju Janta Dal, BPF, AGP are some parties that are in support of the decision.

Political Parties opposing the abrogation:

Congress, Trinmool Congress, Nationalist Congress Party, Janta Dal(United), Rashtriya Janta Dal, LEFT, National Conference, DMK, People’s Democratic Party are some parties that are opposing the decision.

Congress said it a ‘Catastrophic Step’, A Black day in Constitutional history of Democracy of the Country.

DMK defined it as the Murder of Democracy.

Stand of different Countries:

Russia, France, UK, USA, UAE, Sri Lanka, Bangladesh etc are saying that it is the internal matter of India.

While countries like China, Turkey and Pakistan are opposing this decision.

Pakistan moves to UNSC:

On recommendation of China which is permanent member of UNSC, there held a closed consultation, an informal meeting of UNSC in favour of Pakistan. But meeting being a closed consultation, there was no verbation record of statements. It was not covered by repertoire. Although China seemed to be defensive in nature against India, the other four permanent members have not expressed any reservations on India’s move.

Moreover, Pakistan government has decided to downgrade diplomatic relations with India, suspend the bilateral trade and suspends the Indian trains namely The Samjhauta Express which runs between Delhi to Lahore and The Thar Express which connects Jodhpur with Karachi.

Stand of Supreme court of India:

The Supreme Court of India asked central government and J&K administration to reply to pleas seeking the removal of several regressive restrictions in state, including communication blockade after abrogation of article 370.More than 15 PILs over various aspects like Habeas Corpus, Article 370 and plea against communication lockdown are filed to Supreme Court by different citizens. The Bench adjourned the issue as for now and sent a notice to central government saying that Supreme Court will hear PILs challenging government’s move on article 370 in the first week of October.


It is very much clear now, whether the abrogation if article 370 is mistake or a historical decision. In my opinion, the procedure of abrogation is quite constitutional but the central government should deal with lockdown as soon as possible to the upmost extent. Infact, the central government have removed many of the restrictions from most parts of J&K. Schools, Colleges have reopened, telephonic services are started again. The summit of different companies is going to be orgainsed in the month of October for new startups. At the end it can be said that now India is more United as a whole of one Nation with one National Flag.

This article is authored by Manvi Badyal, student of B.A. LL.B at St. Soldier Law College, Jalandhar, Punjab.

Also Read – Article 370: New Destiny for Two New Union Territories of India.

Law Corner

Leave a Comment