Article 370 of the Indian Constitution: Jammu and Kashmir

Introduction

Article 370 of the Indian Constitution established special constitutional arrangements for Jammu and Kashmir following its accession to India in 1947. It governed how provisions of the Indian Constitution applied to the former State and how Parliament could make laws for it.

On 5 August 2019, the Union Government took steps to make the provisions of the Indian Constitution applicable to Jammu and Kashmir and to render Article 370 inoperative in its earlier form. In December 2023, the Supreme Court of India upheld the constitutional validity of the steps taken to make Article 370 inoperative. Understanding Article 370 therefore requires studying both its historical purpose and its present legal position.

Meaning and Definition of Article 370

Article 370 was a provision in Part XXI of the Constitution, which deals with temporary, transitional and special provisions. It established a special constitutional framework for Jammu and Kashmir, including rules governing the application of the Indian Constitution and the legislative powers of Parliament in relation to the former State.

Unlike the ordinary constitutional arrangement applicable to most States, the original framework of Article 370 allowed certain provisions of the Indian Constitution to apply to Jammu and Kashmir through Presidential Orders, subject to the conditions stated in the Article.

The special arrangement did not mean that Jammu and Kashmir was outside India. It was a State of India whose constitutional relationship with the Union was governed by the Indian Constitution, including Article 370.

Historical Background of Article 370

Accession of Jammu and Kashmir to India

At the time of Indian independence in 1947, Jammu and Kashmir was a princely State ruled by Maharaja Hari Singh. Initially, the Maharaja did not accede to either India or Pakistan.

In October 1947, armed tribesmen supported from Pakistan entered Jammu and Kashmir. Facing the attack and seeking military assistance from India, the Maharaja signed the Instrument of Accession on 26 October 1947. India accepted the accession, and Indian forces were sent to defend the territory.

The Instrument of Accession initially covered specified subjects, including defence, external affairs and communications, along with related matters. Article 370 later provided the constitutional framework governing the application of the Indian Constitution to Jammu and Kashmir.

Drafting and Adoption of Article 370

Article 370 was included in the Constitution to address the special circumstances surrounding Jammu and Kashmir's accession and its constitutional relationship with India.

The provision formed part of the original Constitution when it came into force on 26 January 1950. It allowed the President to apply specified provisions of the Indian Constitution to Jammu and Kashmir through orders, subject to the conditions laid down in the Article.

The Constitution of Jammu and Kashmir

A separate Constituent Assembly for Jammu and Kashmir framed the Constitution of Jammu and Kashmir, which came into effect on 26 January 1957.

That Constitution governed the former State alongside the applicable provisions of the Indian Constitution. However, the existence of a separate State Constitution did not place Jammu and Kashmir outside the constitutional authority of India.

Following the constitutional changes of August 2019 and the subsequent reorganisation of the former State, the separate Constitution of Jammu and Kashmir ceased to operate.

Special Constitutional Status under Article 370

Meaning of Special Status

Special constitutional status refers to arrangements under which a State or region is governed by particular constitutional provisions that differ from the general arrangements applicable elsewhere in India.

Under the original Article 370 framework, Jammu and Kashmir had a distinctive arrangement concerning the application of the Indian Constitution and the distribution of legislative powers between Parliament and the former State.

Other provisions of the Constitution, including Articles 371 to 371J, provide special arrangements for certain other States. These provisions differ in their purpose and scope and should not be treated as identical to the former Article 370 arrangement.

Application of the Indian Constitution

Under the original Article 370 framework, the President could specify which provisions of the Indian Constitution would apply to Jammu and Kashmir and could apply them with exceptions or modifications, subject to the conditions of the Article.

Over time, Presidential Orders extended many provisions of the Indian Constitution to Jammu and Kashmir. As a result, the actual constitutional arrangement evolved considerably from the position that existed at the time of accession.

It is therefore inaccurate to assume that only defence, external affairs, communications and finance remained within the Union's authority throughout the entire period in which Article 370 operated.

Legislative Powers of Parliament

Under the original arrangement, Parliament's power to make laws for Jammu and Kashmir was linked to the terms of the Instrument of Accession and the constitutional procedures provided under Article 370. Further subjects and constitutional provisions were extended through Presidential Orders in accordance with the applicable requirements.

The arrangement differed from the ordinary distribution of legislative powers under the Seventh Schedule as it applied to most States.

Residuary Legislative Powers

Under the earlier constitutional arrangement, residuary legislative powers (powers to make laws on subjects not specifically assigned elsewhere) generally rested with Jammu and Kashmir rather than Parliament.

This was an important difference from the usual arrangement under which residuary legislative powers belong to Parliament under Article 248 and Entry 97 of the Union List.

This distinction formed part of the former constitutional framework and should not be treated as a description of the present status of Jammu and Kashmir.

Constitutional Changes in August 2019

Presidential Orders

In August 2019, the Union Government initiated major constitutional changes concerning Jammu and Kashmir through Presidential Orders and a declaration under Article 370.

The main steps were:

• Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272): Issued on 5 August 2019, it applied the provisions of the Indian Constitution to Jammu and Kashmir with the stated modifications and provided the basis for the subsequent constitutional declaration.
• Constitution (Declaration under Article 370) Order, 2019 (C.O. 273): Issued on 6 August 2019, it declared that the provisions of Article 370 would cease to operate, except for a modified provision stating that all provisions of the Indian Constitution would apply to Jammu and Kashmir without exceptions or modifications.

These measures were challenged before the Supreme Court of India.

Jammu and Kashmir Reorganisation Act, 2019

Parliament enacted the Jammu and Kashmir Reorganisation Act, 2019. The Act reorganised the former State into two Union Territories with effect from 31 October 2019:

• Union Territory of Jammu and Kashmir, which has a legislature.
• Union Territory of Ladakh, which does not have a legislature.

As of October 2026, Jammu and Kashmir continues to be a Union Territory. Its Legislative Assembly passed a resolution in September 2026 seeking the restoration of full statehood, but that resolution did not itself restore statehood.

Effect of the Changes on Constitutional Rights and Governance

Fundamental Rights and Directive Principles

The earlier special constitutional arrangement affected how provisions of the Indian Constitution applied to Jammu and Kashmir. However, it is incorrect to assume that the Fundamental Rights in Part III were generally unavailable there.

Following the 2019 constitutional changes, the Indian Constitution applies to Jammu and Kashmir in the same way as it applies to other parts of India, subject to the constitutional framework applicable to Union Territories.

The Directive Principles of State Policy in Part IV and Fundamental Duties in Part IVA are also applicable.

Right to Property

The former Constitution of Jammu and Kashmir contained special provisions concerning property rights. Under the present constitutional framework, the former State-specific constitutional arrangement no longer operates.

Article 300A of the Indian Constitution protects the right to property by providing that no person can be deprived of property except by authority of law. The right to property is a constitutional right, but it is no longer a Fundamental Right under Part III.

Employment, Residence and Property

Under the former arrangement, special rules concerning permanent residents affected certain rights relating to public employment, residence and immovable property.

Following the 2019 changes, the earlier constitutional framework for permanent-resident privileges ceased to operate in its former form. The applicable rules on domicile, public employment, land and property must now be understood through the current Constitution and the relevant laws governing Jammu and Kashmir.

It would therefore be incorrect to state that people from other parts of India are categorically prohibited from purchasing property in Jammu and Kashmir under the former Article 370 arrangement.

Financial Accountability

Jammu and Kashmir is subject to the applicable constitutional and statutory requirements concerning public finance, audit and the use of public funds. The former special status did not mean that the region was exempt from all financial accountability.

Amendment of the Indian Constitution

Under the former Article 370 framework, the application of constitutional amendments to Jammu and Kashmir involved the procedures prescribed under that Article and the relevant Presidential Orders.

Following the 2019 changes and the Supreme Court's decision, the Indian Constitution applies to Jammu and Kashmir without the former Article 370 exceptions and modifications.

Emergency Provisions

The former constitutional arrangement affected the application of certain emergency provisions to Jammu and Kashmir.

Under the present constitutional framework, the relevant emergency provisions of the Indian Constitution apply according to their terms and the constitutional arrangements governing the Union Territory.

The earlier claims that a financial emergency under Article 360 could never apply to Jammu and Kashmir, or that the Union could act only in cases of war or external aggression, should not be presented as the current legal position.

High Court of Jammu and Kashmir and Ladakh

The High Court of Jammu and Kashmir and Ladakh continues to function under the Indian constitutional framework.

Under Article 226, High Courts may issue writs (formal court orders) for the enforcement of Fundamental Rights and for other legal purposes. It is therefore incorrect to state that this High Court can issue writs only to enforce Fundamental Rights or that it has no power to examine the constitutional validity of laws.

Amendment of the Former Constitution of Jammu and Kashmir

The former Constitution of Jammu and Kashmir contained its own amendment procedure. However, following the constitutional changes of 2019 and the Supreme Court's judgment in 2023, that Constitution ceased to operate.

The former procedure requiring a special majority in the State Legislative Assembly, together with any additional approval required for certain amendments, is therefore no longer a procedure through which the constitutional position of Jammu and Kashmir can be changed.

Important Case Law

Prem Nath Kaul v. State of Jammu and Kashmir (1959)

The Supreme Court examined the constitutional and historical position of Jammu and Kashmir, including the role of the State's Constituent Assembly in the development of its constitutional arrangements.

The case is important for understanding the earlier constitutional history of Jammu and Kashmir. However, its observations must be read alongside later decisions, particularly the Supreme Court's 2023 judgment on Article 370.

Sampat Prakash v. State of Jammu and Kashmir (1969)

The Supreme Court considered the operation of Article 370 and the continued use of the constitutional power to issue Presidential Orders concerning Jammu and Kashmir.

The case is important because it examined whether Article 370 continued to operate after the dissolution of the Jammu and Kashmir Constituent Assembly in 1957. The Court accepted that Article 370 remained operative at that time.

The legal position was subsequently examined in detail in the 2023 Article 370 judgment.

State Bank of India v. Santosh Gupta (2017)

The Supreme Court considered the application of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, to Jammu and Kashmir.

The case discussed the former constitutional relationship between Jammu and Kashmir and the Union of India. It is useful for understanding how the special constitutional arrangement operated before the 2019 changes.

In Re: Article 370 of the Constitution (2023)

The Supreme Court of India delivered its judgment on 11 December 2023 in In Re: Article 370 of the Constitution.

The Court upheld the constitutional validity of the steps taken to make Article 370 inoperative in its earlier form. The major conclusions included:

• Article 370 was a transitional provision and did not confer a separate sovereignty on Jammu and Kashmir.
• Jammu and Kashmir did not possess internal sovereignty distinct from that of other States in India.
• The President had the constitutional power to issue the declaration that made Article 370 inoperative in its earlier form.
• The Court upheld the constitutional changes that made the Indian Constitution applicable to Jammu and Kashmir without the former special arrangements.
• The Court upheld the creation of the Union Territory of Ladakh.
• The Court directed that elections to the Jammu and Kashmir Legislative Assembly be held by 30 September 2024 and stated that statehood should be restored at the earliest and as soon as possible.

The judgment is the leading authority on the constitutional validity of the 2019 changes. It must be read as the current legal position rather than relying only on older textbooks that describe the former special status.

Distinction Between the Former and Present Constitutional Position

Practical Example

Suppose Parliament passes a law dealing with a subject that previously required a special constitutional procedure for its application to Jammu and Kashmir.

Under the former Article 370 framework, it was necessary to examine whether the subject fell within Parliament's legislative authority under the applicable constitutional arrangements and whether a Presidential Order was required.

Under the present framework, the question is examined under the Indian Constitution and the laws applicable to the Union Territory of Jammu and Kashmir. The former Article 370 procedure is no longer the basis for deciding whether the law applies.

This example shows why the legal position before August 2019 must be distinguished from the current constitutional framework.

Summary

• Article 370 originally established a special constitutional arrangement for Jammu and Kashmir.
• The Instrument of Accession was signed by Maharaja Hari Singh in October 1947, following an armed invasion.
• The former Article 370 framework governed the application of the Indian Constitution to Jammu and Kashmir through Presidential Orders.
• The Constitution (Application to Jammu and Kashmir) Order, 2019, and the declaration under Article 370 brought about major constitutional changes in August 2019.
• The Jammu and Kashmir Reorganisation Act, 2019, divided the former State into the Union Territories of Jammu and Kashmir and Ladakh from 31 October 2019.
• In In Re: Article 370 of the Constitution (2023), the Supreme Court upheld the constitutional validity of the steps that made Article 370 inoperative in its earlier form.
• The former Constitution of Jammu and Kashmir and its special constitutional arrangements no longer operate.
• As of October 2026, Jammu and Kashmir remains a Union Territory with a legislature; restoration of full statehood has been sought but has not yet taken effect.