What is Article 370?

Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. It restricts 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.

How was Article 370 enacted?

The original draft was given by the Government of J&K. Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. Moving the motion, Ayyangar said that though accession was complete, India had offered to have a plebiscite taken when the conditions were created, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”. On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly.

Can Article 370 be deleted?

Yes, Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly. Since such an Assembly was dissolved on January 26, 1957, one view is it cannot be deleted anymore. But the other view is that it can be done, but only with the concurrence of the State Assembly.

What is Article 35A?

Article 35A of the Indian Constitution is an article that allows the Jammu and Kashmir state’s legislature to define “permanent resident” of the state. It was added to the Constitution through a situationary Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, exercising the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.

Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I.

Background

Prior to 1947, Jammu and Kashmir was a princely state under the British Paramountcy. The people of the princely states were “state subjects”, not British colonial subjects. In the case of Jammu and Kashmir, the political movements in the state in the early 20th century led to the emergence of “hereditary state subject” as a political identity for the State’s people. In particular, the Pandit community had launched a “Kashmir for the Kashmiri” movement demanding that only Kashmiris should be employed in state government jobs. Legal provisions for the recognition of the status were enacted by the Maharaja of Jammu and Kashmir between 1912 and 1932. The 1927 Hereditary State Subject Order granted to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects.

Following the accession of Jammu and Kashmir to the Indian Union on 26 October 1947, The Maharaja ceded control over defence, external affairs and communications (the ‘ceded subjects’) to the Government of India . The Article 370 of the Constitution of India and the concomitant Constitutional Order of 1950 formalised this relationship. Discussions for furthering the relationship between the State and the Union continued, culminating in the 1952 Delhi Agreement, whereby the governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.

In his statement to the Lok Sabha on the Delhi agreement, Nehru has said:

The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. However, we agree that this should be cleared up. The old state’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest.

So, we agreed and noted this down: ‘The State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply.’

Following the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of Jammu and Kashmir, the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 1954, through which Indian citizenship was extended to the residents of the state, and simultaneously the Article 35A was inserted into the Indian constitution enabling the State legislature to define the privileges of the permanent residents.

Why is it being challenged?

The Supreme Court will examine whether it is unconstitutional or violates the basic structure of the Constitution. But unless it is upheld, many Presidential Orders may become questionable. Article 35A was not passed as per the amending process given in Article 368, but was inserted on the recommendation of J&K’s Constituent Assembly through a Presidential Order.

Support

According to constitutional expert A.G. Noorani, all the legal arguments against the article are groundless, and are raised with “communal-minded majoritarian” intentions. He refers to the various Articles in the Constitution, that similarly provide special rights to other Indian states, and remarks that no objections were raised on them. Since Article 370 was enacted on 26 November 1949 as part of the Constitution of India by the Constituent Assembly of India which was a sovereign body, he remarks, Article 35A “flows inexorably” from it. He recalls the Sheikh Abdullah’s report to Kashmir’s Constituent Assembly on 11 August 1952, which said, “it was agreed that the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State more especially in regard to acquisition of immovable property, appointments to services and like matters. There are historic reasons which necessitate such constitutional safeguards as for centuries past, the people of the State have been victims of exploitation at the hands of their well-to-do neighbours.”

Article 35 A protects the demographic status of the Jammu and Kashmir state in its prescribed constitutional form. Scholar Srinath Raghavan states, Kashmiris are apprehensive that any move to abrogate Article 35A would open the gates for a demographic transformation of the valley, an objective advanced by the Sangh Parivar groups as an ideal solution to the Kashmir issue. He further says that the state’s autonomy has been gradually eroded by various governments of Delhi through misuse of the provisions of Article 370, and remarks: “Kashmiris have come to regard the rights of permanent settlement as the only remaining piece of any meaningful autonomy.” Former Chief Minister of Jammu and Kashmir, Mufti Mohammad Sayeed, while speaking about the issue of West Pakistani refugees, has said, “before we do anything on this, we need to allay genuine fears that there is an attempt to change the demographics of the state.”

Noorani also points to the observations made by the High Court of Jammu & Kashmir in this regard, while delivering a judgement on 16 July 2015:

“The Parliament has no power to legislate law about the subject’s administration of justice, the land & the other immovable properties.

Article 35(A) of the Constitution of India, which has been applied to the State of Jammu and Kashmir, not only recognizes but clarifies the already existing constitutional and legal position and does not extend something new to state of Jammu and Kashmir. This article, on its own, does not give anything new to the State of Jammu and Kashmir. Article 14 of the Constitution of India, as has been made applicable to the State of Jammu and Kashmir, thus, gave equal protection of laws to the State subjects/citizens as a class apart. Similarly, article 19(1)(f) of the Constitution of India, which has been made applicable to the State of Jammu and Kashmir and till date continues to be in force in the State, recognizes the right to own, hold and dispose of property, which right otherwise is inherent in the State subjects/citizens of the State of Jammu and Kashmir, who stand defined in terms of Elans/Orders of His Highness and the Constitution of Jammu and Kashmir.

Laws have their own universe. They operate in matter and not in vacuum. The laws are located in time and space. In the State of Jammu and Kashmir, the immovable property of a State subject/citizen, cannot be permitted to be transferred to a non State subject. This legal and constitutional protection is inherent in the State subjects of the State of Jammu and Kashmir and this fundamental and basic inherent right cannot be taken away in view of peculiar and special constitutional position occupied by State of Jammu and Kashmir. Article 35-A is clarificatory provision to clear the issue of constitutional position obtaining in rest of country in contrast to State of Jammu and Kashmir. This provision clears the constitutional relationship between people of rest of country with people of Jammu and Kashmir.”

As an amendment to, or modification of, the 1954 order, 41 subsequent Presidential orders have been passed afterwards. According to the report of the State Autonomy Committee, the central government, through these Presidential orders, extended 94 out of 97 entries in the Union List to Jammu and Kashmir, and made applicable to the state 260 out of 395 articles of the Indian Constitution. They have been used to issue provisions and make changes, which include – replacing the elected Sadr-e-Riyasat (President of the State) with a Governor chosen by the Centre; changing the ‘Prime Minister’ of the state to Chief Minister; extending the powers of the Supreme Court and Election Commission to Jammu and Kashmir; and preventing the state Assembly from making any amendment to the Jammu and Kashmir Constitution. Kashmir advocate Zaffar Shah says, Article 35A has been added in the Constitutional Application Order 1954 and by questioning it, the entire Constitutional Application Order will have to be questioned. If the Court rules that Constitutional Application Orders are invalid, such a judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date. The Constitutional link between the Union and the State will be snapped and the position of the State will be same as it was before constitutional arrangements were worked out. So, if the order of 1954 is snapped, Jammu and Kashmir can, in theory, return to the pre-1954 constitutional arrangement, where the Centre’s powers were restricted to Defence, Foreign Affairs and Communications alone, according to the Instrument of Accession. Zaffar Shah states it will also affect various provisions of the Constitution of the State and result in Constitutional crisis.

Zaffar Shah adds that the scope and extent of power of the President to apply Constitutional provisions with or without “exceptions” or “modifications” has already been subject matter of the decisions of the Supreme Court of India, and he opines, it is ruled to be co-extensive with the power to amend Constitution and includes the power to enlarge any existing provision or add new provision. He says the only requirement is that it has to be done by the President with “concurrence” of the Government of Jammu and Kashmir.

The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of Article 370 and Article 35A. In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which read, “though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”. It termed the PIL against the article as “legally misconceived, untenable and meritless”.

In January 2017, the Chief Minister of Jammu and Kashmir, Mehbooba Mufti of PDP has commented that anybody raking up Article 370 & Article 35 A repeatedly, is hurting the soul of Kashmir. Vowing to oppose any such move, she said, “There will be no bigger anti-national thing than this because when you weaken this uniqueness of Kashmir through judiciary, then those forces in Kashmir Valley, who want to put an end to the composite culture in Kashmir Valley and want to have people from one community (Muslims) only, with one attire and one way of life, you will only make them successful.” Talking about BJP’s opposition to the state’s autonomy, she also said, “when the people of BJP talk of Article 370, they talk of technical integration. We have to make them understand that we also want that Jammu and Kashmir should fully integrate with India emotionally, technically.” She added that the integration which should have been done “emotionally and psychologically”, was not done completely, which is needed, and for it, she said, Article 370 is not an impediment but a bridge which connects the state of Jammu and Kashmir and the rest of India. Previously in 2014, during a similar debate regarding autonomy of Jammu and Kashmir and Article 370, Mehbooba Mufti stated that fiddling with Article 370 could lead to anarchy in the state. She said, such “irresponsible utterances” should be stopped as they could have serious repercussions in Jammu and Kashmir, besides having the potential of spoiling the atmosphere of inclusiveness and peace which the Indian government aims at achieving.

Raghavan has stated that any attempt by Delhi to tamper with the state’s autonomy “is bound to result in a massive backlash”.

(Excerpt from : https://en.wikipedia.org/wiki/Article_35A_of_the_Constitution_of_India)

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