Article 370 and special provisions for States
Constitutional Law II · Unit I · Topic 6 of 21 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Accession and the original Article 370
Maharaja Hari Singh signed the Instrument of Accession on 26 October 1947, surrendering defence, external affairs and communications to the Dominion of India. Article 370, drafted by N. Gopalaswami Ayyangar and placed in Part XXI as a “temporary” provision, governed the State's relationship with the Union:
- Clause (1) — Article 238 did not apply. Parliament could legislate for the State on matters in the Instrument of Accession after consultation with the State government, and on other matters only with its concurrence. Article 1 and Article 370 applied of their own force; other provisions applied only with such exceptions and modifications as the President specified by order.
- Clause (2) — concurrence given before the State's Constituent Assembly met had to be placed before that Assembly.
- Clause (3) — the President could, by public notification, declare that Article 370 shall cease to be operative, on the recommendation of the Constituent Assembly of the State.
The Constitution (Application to Jammu and Kashmir) Order, 1954 extended most of the Constitution with modifications and added Article 35A, which protected State laws on permanent residents. The State adopted its own Constitution in 1957, and its Constituent Assembly dissolved on 26 January 1957 without recommending that Article 370 cease.
2. The earlier cases
- Prem Nath Kaul v. State of Jammu and Kashmir, 1959 INSC 17, AIR 1959 SC 749 — explained Article 370 as a transitional arrangement and upheld the Maharaja's legislative power before the Constitution.
- Sampat Prakash v. State of Jammu and Kashmir, 1969 INSC 28, AIR 1970 SC 1118 — the President's power to issue orders under Article 370(1) continued after the dissolution of the State's Constituent Assembly.
- Mohd. Maqbool Damnoo v. State of Jammu and Kashmir, 1972 INSC 7, (1972) 1 SCC 536 — upheld the replacement of the Sadar-i-Riyasat by the Governor through a modification of Article 367.
- State Bank of India v. Santosh Gupta, 2016 INSC 1157, (2017) 2 SCC 538 — the State had no sovereignty outside the Constitution of India, and the SARFAESI Act applied there.
3. The events of August 2019
The State had been under Governor's Rule from June 2018 and President's Rule under Article 356 from December 2018, so the powers of its legislature were exercisable by Parliament.
- C.O. 272 (5 August 2019) — issued under Article 370(1), with the concurrence of the “Government of the State” (the Governor). It applied the whole Constitution to the State and superseded the 1954 Order, which ended Article 35A. It also added clause (4) to Article 367 so that “Constituent Assembly of the State” in Article 370(3) would be read as “Legislative Assembly of the State”.
- Parliamentary resolution — both Houses, acting for the dissolved State legislature, recommended that Article 370 cease to operate.
- C.O. 273 (6 August 2019) — issued under Article 370(3), declaring that all clauses of Article 370 shall cease to be operative, except a clause providing that the Constitution as amended from time to time applies to the State.
- Jammu and Kashmir Reorganisation Act, 2019 — under Article 3, divided the State into two Union Territories from 31 October 2019: Jammu and Kashmir, with a legislature, and Ladakh, without one.
4. In re Article 370 (2023)
In In re Article 370 of the Constitution, 2023 INSC 1058, decided on 11 December 2023, a five-judge Constitution Bench (Chandrachud CJ, Kaul, Khanna, Gavai and Surya Kant JJ) upheld the abrogation. The main holdings:
- No internal sovereignty. After accession and the Constitution, Jammu and Kashmir retained no element of sovereignty. Its special status was a feature of asymmetric federalism, not sovereignty.
- Article 370 was temporary. Read in its historical context and its placement in Part XXI, it was a transitional arrangement for integration, not a permanent one.
- The power under 370(3) survived. It did not end when the State's Constituent Assembly dissolved in 1957, because the recommendation of that Assembly was meant to be transitional and was not binding on the President.
- C.O. 272's use of Article 367 was bad in part. Article 367 is an interpretation clause; using it to change Article 370(3) amounted to amending Article 370 without following Article 368. That part of C.O. 272 was invalid.
- C.O. 273 was nonetheless valid. The President could issue a notification under Article 370(3) without a recommendation from any body, and the concurrence of the State government was not needed to apply the whole Constitution. The exercise of power was not shown to be mala fide.
- Powers during President's Rule. Not every action of Parliament or the President under Article 356 must be legislative in nature; the challenge must show that the action is mala fide or has no reasonable nexus with the Proclamation. The Proclamation itself was not separately decided because it was not challenged and had ended.
- Reorganisation. Carving out Ladakh as a Union Territory was upheld under Article 3. On converting the rest into a Union Territory, the Court did not rule, recording the Solicitor General's statement that statehood would be restored. It directed the Election Commission to hold elections to the Legislative Assembly by 30 September 2024; those elections were held in September and October 2024.
- Kaul J, concurring, recommended an impartial truth and reconciliation commission on human rights violations in the State since the 1980s.
5. Special provisions: Articles 371 to 371-J
These are milder forms of asymmetric federalism, giving particular States or regions protection of customary law, land or development funding.
- 371 — Maharashtra and Gujarat: the Governor's special responsibility for separate development boards for Vidarbha, Marathwada, Saurashtra and Kutch.
- 371-A — Nagaland: no Act of Parliament on Naga religious or social practices, customary law and procedure, civil and criminal justice under customary law, or ownership and transfer of land applies unless the State Assembly so resolves.
- 371-B — Assam: a committee of the Assembly for tribal areas. 371-C — Manipur: a committee of members from the Hill Areas.
- 371-D and 371-E — Andhra Pradesh (and now Telangana): equitable opportunities in public employment and education for different parts of the State, and an administrative tribunal; and a Central University.
- 371-F — Sikkim, on its admission in 1975: special provisions on its Assembly and protection of existing laws.
- 371-G — Mizoram: protection like Nagaland's for Mizo religious and social practices, customary law and land.
- 371-H — Arunachal Pradesh: the Governor's special responsibility for law and order. 371-I — Goa: an Assembly of not less than thirty members.
- 371-J — Karnataka, added by the Ninety-eighth Amendment (2012): a separate development board for the Hyderabad-Karnataka region (now called Kalyana-Karnataka), equitable allocation of funds, and reservation of seats in educational institutions and posts in State government for persons from the region.
How this is examined
Article 370 has appeared in recent KSLU papers, as an essay or short note. Write the history, the 2019 steps in order, and the holdings of the 2023 judgment, especially the Article 367 point. For a short note on special provisions, Article 371-J is the one a Karnataka examiner expects to see explained, with 371-A and 371-G as examples of protection for customary law.
Now try the real questions: Constitutional Law II past question papers.