C.O. 273, Declaration Under Article 370(3) of the Constitution

Indian Ministry of Law and Justice, Indian President

SUMMARY

November 23, 2023

On August 5 and 6, 2019, the Government of India imposed unprecedented legal changes in Indian-Administered Jammu and Kashmir, including Presidential Order C.O. 273. By fiat, this eliminated historic protections guaranteed by international humanitarian law, treaty and constitutional guarantees for the benefit of the indigenous people of Indian-Administered Jammu and Kashmir. This also overturned the legal basis for seven decades of Indian jurisprudence (itself based in violations of international law) relating to Indian-Administered Jammu and Kashmir and imposed almost all of the provisions of the Indian Constitution to the territory. This is a major violation of international humanitarian law, human rights, indigenous rights, treaty obligations and constitutional guarantees.

Topics: changing the laws in force in occupied territory, international humanitarian law violation, no consent of governed, violation of economic rights, violation of cultural rights, violation of social rights, demographic change, settler colonialism, land expropriation, forced demographic change, colonial domination, dispossession, disempowerment, marginalization, right to education, right to work, indigenous rights

ARTICLE PREVIEW

Note that:

the original Article 370 of India’s Constitution was illegal (under international law) and a political compromise borne of a drawn-out negotiation between a non-representative, non-democratic, India-sanctioned government in the Indian-Administered Jammu and Kashmir and the Government of India
the Government of India had historically used Article 370 of India’s Constitution to implement the inverse of what was purportedly intended by Article 370, namely to make Jammu and Kashmir an inferior, constitutionally subordinate, subservient region lacking territorial integrity rather than a privileged, constitutionally separate, fully autonomous state with territorial integrity and extraordinary powers over its own affairs.

On August 5, 2019, the Government of India announced unprecedented steps relating to Indian-Administered Jammu and Kashmir. India’s President issued C.O. 272 (the Constitution (Application to Jammu and Kashmir) Order, 2019) and India’s Parliament passed a resolution which:

Claimed to be exercising powers conferred by Article 370 on the recommendation of the Indian Parliament (after India imposed direct Indian President rule on Jammu and Kashmir, the Government of India claimed that all of the powers constitutionally vested in the Jammu and Kashmir Constituent Assembly were now vested in India’s Parliament);
Claimed to use Article 370 to declare all of Article 370 inoperative except a new clause (1); and
Claimed to insert a new clause (1) to Article 370 that applied all of the provisions of the Indian Constitution to Jammu and Kashmir without any modification or exception, notwithstanding the Constitution of Jammu and Kashmir, legal custom or any other “instrument, treaty or agreement.”

Then, pursuant to Presidential Order C.O. 273 (claiming the exercise of powers pursuant to clause (3) of Article 370 of the Indian Constitution), the Indian Government:

Claimed to use Article 370 itself to eliminate all of the substance of Article 370;
Claimed to unilaterally obviate, among other things, the Jammu and Kashmir Constitution and the Instrument of Accession (the legal instrument which, in the Indian Government’s view, is the legal basis for Jammu and Kashmir’s accession to India
Claimed to give authority to the Indian Parliament to give consent to itself

Link to Original Article