A Reflection on Possibility of Abrogation of Article 370 of the Indian Constitution

Abstract

On August 15, 1947, when India became independent, J&K was not a part of its territory. It was only by the Instrument of Accession, dated 27.10.47, signed by the Maharaja of J&K that the state acceded to the Dominion of India. By clause 3 the Maharaja accepted that the matters specified in the schedule are the matters with respect to which the dominion legislature may make laws for the state of J & K. The instrument further provided that the terms of instrument shall not be varied by an amendment to the Act or the Indian Independence Act, unless such amendment was accepted by the Maharaja. The instrument also clearly laid down that nothing in the instrument shall be deemed to commit the state in any way to the acceptance of any future Constitution of India. This instrument accepted only a limited number of matters -- Defence, External Affairs and Communications -- with respect to which the Indian legislature could make laws for J&K. This special relationship of J&K found its reflection in Article 370 of the Indian Constitution which laid down that notwithstanding anything in the Constitution, the powers of Parliament to make laws for the state shall be limited to those matters in the Union List and the Concurrent List, which, in consultation with the government of the state, are declared by the President to correspond to matters specified in the Instrument of Accession, and such other matters in the said lists with the concurrence of the state the President may by order specify. Thus by virtue of Article 370 Parliament can legislate for J&K on matters other than those mentioned in the instrument but only after obtaining the concurrence of the state of J&K.