History of Article 370 in the Indian Constitution:

It tracks back to 1947, when King Hari Singh of Jammu and Kashmir signed the “Instrument of Assent” in favor of India which then made the province of Jammu and Kashmir an integral part of India. Later with the Constitutional draft ready, Article 370 was added as a temporary provision with the scope of being scrapped by the President only with the consent of the Constituent Assembly of Jammu and Kashmir which was apparently dissolved immediately after the state received its special status.

Then, in 1954 the President through a Presidential Ordinance passed a provision under Article 35-A which completely separated the Indian citizens who were residents of Jammu and Kashmir from the non-resident Indian citizens. Which was a drawback for the citizens from other states and for the state of Jammu and Kashmir collectively because neither would people want to migrate for work there and nor was the economic development growing.

Following the passage of Article 370 and Article 35-A of the Indian Constitution, which gave a special status to Jammu and Kashmir. In the year 1956, Jammu and Kashmir came up with their own Constitution. Though their Constitution considered the state an integral part of India, it seemed otherwise.

Between 2015 to 2019, the nation saw the most diplomatic political move. The BJP’s coalition with the People Democratic Party. This coalition resulted in the making of Mehbooba as the Chief Minister of Jammu and Kashmir. Later, BJP break their alliance with the state and there is a failure of state machinery which calls for the Presidential Rule or the Governor Rule as per the provisions of the Jammu and Kashmir Constitution. In 2019, when BJP win majority in the Parliamentary Elections, the first thing on their agenda was scrapping away Article 370 along with Article 35.

A brief overview on what Article 370 and Article 35-A of the Indian Constitution did to the structure of India:

·      Article 370 along with Article 35-A of the Indian Constitution prohibited any Indian Citizen who was not a permanent resident of the state of Jammu and Kashmir from attaining government jobs, getting high posts or even purchasing and carrying out business.

·      These provisions also affected the Kashmiri women to a major extent and discriminated on the grounds that if any Kashmiri residing woman decided to marry a man who was not a Kashmiri resident, she would lose out on all rights of inheritance. Though this was challenged in the Supreme Court, after which the court held that any woman who marries a non-Kashmiri man, shall be entitled to inheritance but her offspring would not be able to inherit her property which is situated in the state of Jammu and Kashmir.

The diplomatic move by the BJP Government in the removal of Article 370 and Article 35-A.

In the year 2019, there were two resolutions that were proposed by the Home Minister. They were the following:

1.     An Amendment to Article 370: This amendment was added to Article 370 as an interpretation clause to the term “Constituent Assembly”. This term was interpreted as an equivalent to “Legislative Assembly” and since the state had no Legislative Assembly this would enable the President to scrap the provision of Article 370 under Presidency Rule.

2.     The Re-Organization of Jammu and Kashmir Bill: Under this bill there would be a creation of two new Union Territories in the Country. Jammu and Kashmir would be one Union Territory and Leh and Ladakh would be another Union Territory.

The current situation of Article 370 and Article 35-A

The situation was brought up in the Supreme Court of India, because the scrapping of Article 370 was done under the President Rule as per the provisions of Article 356 of the Indian Constitution, but like we have seen over the years any law passed under the applicability of Article 356 is restorative in nature post uplifting of the Presidents Rule. Thus, as per this logic the special status of Jammu and Kashmir should have long gone been restored.

But the above situation was once again diplomatically defended by the Centre, under the preview that the President Rule and decision of scrapping Article 370 was seconded and passed by both the houses of the Parliament making it a valid abrogation. The creation of separate Union Territories was also challenged, but once again the Centre diplomatically stated their purpose of creating two separate Union Territories was to combat Terrorism.

The matter is listed before a 5-judge bench comprising of CJI DY Chandrachud, Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant on the 2nd of August 2023.