Article 370: Why does it matter?

The Kashmir issue between India and Pakistan began with a calamitous act in 1947 and has led to decades of violence, involving two wars. Since 1947, India and Pakistan have been at odds over Kashmir, a majority-Muslim territory in India’s far north. The 86,000-square-mile mountainous region was formerly a royal realm. Both India and Pakistan now control it.

There were hints of unrest in Kashmir in the first couple of days of August 2019. Tens of thousands more Indian troops were dispatched, a major Hindu pilgrimage was canceled, schools and universities were closed, visitors were told to evacuate, telephone and internet services were halted, and area political leaders were brought under house arrest. The majority of conjecture, however, was that Article 35A of the Indian constitution, which granted state residents special privileges, would be repealed. The administration then surprised everyone by announcing that it was withdrawing virtually all of Article 370, which includes 35A and has served as the foundation of Kashmir’s complicated relationship with India for almost 70 years.

Article 370 is defined in the Indian Constitution as a “temporary provision” that provides the state of Jammu and Kashmir considerable independence inside the Indian union.  According to Article 370, the Union Parliament can only create legislation for the region “in consultation with the State Government.” on specific subjects listed in the Instrument of Accession, notably defense, international relations, and telecommunications. Other elements on the legislative topic lists can only be implemented to Jammu and Kashmir with the “consent of the State Government” via presidential order. Article 370 states that additional constitutional provisions may be implemented to the state on a case-by-case basis.“subject to such adjustments or exclusions” issued by the president of India, likewise by presidential order, as long as they do not fall under the subjects mentioned to above and with the consent of the state government.

As a result of this status, Jammu and Kashmir established their own laws, which were approved by a Constituent Assembly on November 17, 1956, and went into effect on January 26, 1957.

According to attorneys and legal experts, the repeal of Article 370 faces a variety of legal obstacles. First, it is unclear if the administration of the state of Jammu and Kashmir has given its approval. For the last year, the state has been under direct presidential administration under Article 356 of the Constitution, after the BJP resigned from an agreement with a regional party and the governor dissolved the state parliament.

“The Governor, like the President, is a representative of the Central Government,” according to one lawyer. As a result, Presidential Order 272 effectively equates to the Central Government giving its own approval to change the Constitution.”Another argument is that article 370 (“this Article shall apply in respect to that state”) prohibits the president from exercising his constitutional amendment power (as it applies to Jammu and Kashmir) to alter article 370 itself, even if done informally. Article 368’s standard amending process would have to be followed.

According to media sources, the Supreme Court of India was considering fourteen public interest legal petitions on the Jammu and Kashmir problem. Some of the petitions concern the repeal of Article 370 and the unique status of Jammu and Kashmir. The Court is also examining a number of petitions “demanding an end to the limitations on travel and communication enforced in the Kashmir valley.” On August 28, 2019, the Supreme Court of India announced that a five-member panel will review petitions challenging the government’s intention to remove the special status granted to Jammu and Kashmir under Article 370.

According to national press reports on September 16, 2019, the Supreme Court agreed to acknowledge a petition lodged by the Jammu and Kashmir People’s Conference (JKPC), a state political party, challenging “the President’s Rule enforced in the state and abdication of provisions of Article 370,” but refused to hear any new petitions challenging the order. After a panel of three justices heard various petitions pertaining to the state, the top justice of the Supreme Court is reportedly said to have declared that “[w]e urge Jammu and Kashmir to make the very best attempt to ensure normal life returns.”

The Court commenced hearings on the aforesaid case on October 1, 2019, but gave the federal government 28 days (until November 14) to respond to all Jammu and Kashmir-related petitions. Petitioners were outraged since the deadline for adopting the state restructuring was October 31. One petitioners’ advocate expressed worry that the “process would be permanent, and the petitions must not be made pointless.”

 References:

“Article 370: What Happened with Kashmir and Why It Matters.” BBC News. BBC, August 5, 2019. https://www.bbc.com/news/world-asia-india-49234708. 

Buchanan, Kelly. “FALQs: Article 370 and the Removal of Jammu and Kashmir’s Special Status.” FALQs: Article 370 and the Removal of Jammu and Kashmir’s Special Status | In Custodia Legis: Law Librarians of Congress, October 3, 2019. https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-and-kashmirs-special-status/. 

“Kashmir.” Encyclopædia Britannica. Encyclopædia Britannica, inc. Accessed July 5, 2021. https://www.britannica.com/place/Kashmir-region-Indian-subcontinent. 

Altaf Hussain WaniKashmir Institute of International Relations, and Altaf Hussain Wani. “Jammu and Kashmir: the Conflict in Focus.” Conciliation Resources, December 1, 2016. https://www.c-r.org/programme/south-asia/jammu-and-kashmir-conflict-focus?gclid=CjwKCAjwuIWHBhBDEiwACXQYsWCRzP3kmxfkQ4BG0-3udgxY0KatqV-YDl0eKOzQwJAdQGo-8tgRrhoCfwAQAvD_BwE. 

Blakemore, Erin. “The Kashmir Conflict: How Did It Start?” Culture. National Geographic, May 3, 2021. https://www.nationalgeographic.com/culture/article/kashmir-conflict-how-did-it-start. 

Al Jazeera. “Kashmir’s Special Status: Five Things to Know.” India News | Al Jazeera. Al Jazeera, August 5, 2019. https://www.aljazeera.com/news/2019/8/5/kashmir-special-status-explained-what-are-articles-370-and-35a.