Article 370 and Article 35A of Constitution

WHAT IS ?

Article 370 exempted  from the Indian (except Article 1 and Article 370 itself) and permits the state to draft its own . It restricted Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to other matters, “concurrence” of the state government is mandatory.

The IoA came into play when the Indian Independence Act, 1947 divided British India into India and Pakistan.

For some 600 princely states whose sovereignty was restored on Independence, the Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan — and this joining with either of the two countries was to be through an IoA. Though no prescribed form was provided, a state so joining could specify the terms on which it agreed to join.

The maxim for contracts between states is pacta sunt servanda, i.e. promises between states must be honoured; if there is a breach of contract, the general rule is that parties are to be restored to the original position.

A number of other states enjoy under Article 371, from 371A to 371.

Article 370 and Article 35A of Constitution

Presidential order 1954

The Presidential order of 1954, came into force on 14 May 1954. Issued with the agreement of the State’s Constituent Assembly, it was a comprehensive order seeking to implement the 1952 Delhi Agreement.

The provisions implementing the Delhi Agreement were:

  1. Indian citizenship was extended to the ‘permanent residents’ of Jammu and Kashmir (formerly called ‘state subjects’). Simultaneously, the  was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment.
  2. The fundamental rights of the Indian constitution were extended to the state. However, the State Legislature was empowered to legislate on preventive detention for the purpose of internal security. The State’s land reform legislation (which acquired land without compensation) was also protected.
  3. The jurisdiction of the supreme court of India was extended to the State.
  4. The Central Government was given power to declare national emergency in the event of external aggression. However, its power to do so for internal disturbances could be exercised only with the concurrence of the State Government.

In addition, the following provisions which were not previously decided in the Delhi Agreement were also implemented:

  1. Financial relations between the Centre and the State were placed on the same footing as the other States. The State’s custom duties were abolished.
  2. Decisions affecting the disposition of the State could be made by the Central Government, but only with the consent of the State Government.

Article 35A

In simple language, Article 35A can be explained as The provision of the Constitution which allowed the Jammu & Kashmir state Assembly to define who is and is not a “permanent resident” of the state. To further break it down, this provision of the Constitution gave the legislators from Jammu & Kashmir the exclusive power to determine as to which people in or outside the state will have special rights and privileges granted by the state.

The provision, inserted through a special Presidential order in 1954, also gave the state Assembly powers to determine the recipients of state grants, the right to purchase land and property in the state, as well as settling permanently in the region.

Other than this, the legislative Assembly of Jammu & Kashmir could use the provision to restrict rights of any person not classified under “permanent resident” of the state.

As a result of this provision, Indian citizens from other states couldn’t purchase land or property in Jammu & Kashmir

The article, referred to as the Permanent Residents Law, also barred female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extended to such women’s children.

Critics of Article 35A said that the provision did not have any parliamentary sanction, and that it discriminated against women.

Present scenario

“The entire constitution will be applicable to Jammu and Kashmir state,” the Home Minister told the Rajya Sabha.

quoted Article 370 (3) of the Constitution to assert that the President of India can make the Article 370 inoperative under this provision.

He said that President Ram Nath Kovind has signed the official notification abrogating Article 370 and since the Jammu and Kashmir constituent assembly no longer exists and the state assembly stands dissolved, the powers of the assembly was with both houses of parliament.

Article 370 and Article 35A of Constitution
Union Home Minister Amit Shah

“The President’s order can be discussed and passed by both houses of Parliament,” said Amit Shah.

The Home Minister said Clause 3 of Article 370 was such that the provision could be scrapped or amended and the President had the right to issue such a notification or constitutional order.

“We are adopting the same path as adopted by the Congress in 1952 and 1962 by amending the provisions of Article 370 the same way through a notification,” Amit Shah said, as Samajwadi Party member Ram Gopal Yadav questioned whether changes can be made to the constitution without a Constitutional amendment.

The Home Minister said because there is no constituent assembly today, the assembly of Jammu and Kashmir enjoyed its rights. And as there is President’s Rule in the state, the rights of the assembly are with the Lok Sabha and Rajya Sabha.

The state assembly in Jammu and Kashmir was suspended in November and governor’s rule was imposed, so the government had the right to circumvent the clause that calls for the state assembly’s approval for any changes to Article 370.

Its Implications

The move is expected to further inflame tensions in the Muslim-majority region of more than seven million people and infuriate rival Pakistan.

The government, led by the Hindu nationalist Bharatiya Janata Party, also moved a bill proposing the Jammu and Kashmir state be divided into two “union territories” directly ruled by New Delhi.

The Jammu and Kashmir union territory will include the Hindu-majority Jammu region and will have a legislative assembly.

The Buddhist-majority Ladakh region, which has a considerable population of Shia Muslims, will also be a union territory, but it will not have an assembly.

Kashmiris fear the move would lead to a demographic transformation of the region from majority-Muslim to majority-Hindu.

“They [the government] have not just struck down the provision of 370, but they have actually dismantled the fate of Jammu and Kashmir as it existed in the Indian constitution,”

“It now consists of union territories which are centrally governed – Ladakh and Jammu and Kashmir. This is a sort of a radical new provision, which many people are saying will require a constitutional amendment.”

 What next?

Article 370 of the Indian constitution permits revocation of the law by presidential order. However, such an order must be introduced before the state’s Constituent Assembly.

Since that body was dissolved in 1957, experts have different views on the abrogation of the law, with some believing it needs approval by state lawmakers and others seeing a presidential order as sufficient.

 the order will face both legal and political challenges in the coming days.

“The first legal challenge will come from Kashmir itself. Doing away with Article 370 now opens the door for an open Palestine-type independence struggle within Kashmir,”

“In India as well, there will be mounting legal challenges and political opposition which has many illustrious lawyers. It can be expected that these will be heard by a constitutional bench in Supreme Court.

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