Article 370 and Article 35A

Introduction

Some of the frequent words that we keep on hearing in relation to J&K are Article 370 and Article 35A. There are news that Union govt want to do away with these articles, but state politicians are opposing this.

In this article (related to current affairs and Indian polity), we will find out on these articles in details.

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What is Article 370

Jammu and Kashmir (J&K) is an integral part of India. It is a constituent state of Indian Union under Article 1 of the Indian constitution. However, it has been provided special status under Article 370 of the constitution; consequently all the provisions of the Constitution of India are not applicable to it. J&K is unique in the sense that it has its separate state constitution.

Article 370 has been controversial right since its inception. Some sections of the society want this article to be removed for a complete integration of J&K with the Union of India. However, there are others especially from the Kashmir valley, who wants that this article should continue as it shows faith for Instrument of Accession under which J&K came into the Indian Union.

Article 370 can become redundant or can be operated with modifications by the order of President of India. However, President can only pass such an order on the recommendation of the Constituent Assembly of the state of Jammu and Kashmir. The Constituent Assembly of J&K created the state’s constitution and later dissolved itself without abrogating the Article 370, thus the article is now considered as a permanent feature of the Indian Constitution.

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History of Jammu and Kashmir

• In 1947 just after independence, armed men from Pakistan invaded Kashmir.
• Maharaja Hari Singh (Maharaja of the princely state of J&K) realized that he might lose Kashmir to Pakistan and requested India for help.
• V P Menon close associate of Sardar Patel arrived in Srinagar and told Hari Singh that India would only provide help if Kashmir acceded to India.
• Maharaja reluctantly acceded to India because of the grave situation created by the Pakistani invaders.
• On 26^th October, 1947, Maharaja Hari Singh signed the Instrument of Accession.
• But Maharaja always wanted to make J&K independent.
• Clause 7 of the Instrument of Accession mentions that Maharaja was non committal to acceptance of the future Constitution of India.
• Similarly, clause 8 mentions that nothing in the instrument affected the sovereignty of the Kashmir.

History of Article 370

• In 1949 after the accession of J&K, Sheikh Abdullah negotiated Jammu and Kashmir’s political relationship with New Delhi.
• This led to the inclusion of Article 370 in the Indian Constitution.
• In 1952 Abdullah and Nehru signed Delhi Agreement.
• Sheikh Abdullah never wanted temporary provisions, he insisted for iron clad guarantee of autonomy for J&K but India never accepted his proposals.
• This led to the extension of several provisions of the Indian Constitution in the state of J&K.
• This was done via a presidential order in 1954.
• Article 35A was inserted then.
• In 1957, The Constitution of Jammu and Kashmir came into force; Article 370 was the guiding light for the relationship J&K and New Delhi.

Article 370 and its Provisions

• The article is drafted in Part XXI of the Constitution.
• Certain special powers are provided to the state of J&K.
• It provides J&K a ‘temporary’ autonomous s
• Except for Foreign Affairs, Defense, Finance and Communications, the Government of India needs the State Government’s approval to implement any other law.
• Financial emergency cannot be imposed in the state.
• The state government has been given the autonomy on how it needs to govern the state.
• State List is not enumerated for the State of J&K; it is confined to the matters of only Union List and Concurrent List.
• The residuary power of legislation has been given to the state of J&K which is unlike any other state were residuary powers belongs to Parliament of India.
• Indian national of any other state are not allowed to buy land or property in the state of J&K.
• Woman loses the right to ownership if she marries a person belonging to any other state.

Criticism of Article 370

• Critics argue that Article 370 promotes appeasement and it should be removed for the complete merger of J&K with the India Union.
• The legal provision that religious worship cannot be misused for political purposes does not apply to J&K. This is a threat to the secular nature of Indian Constitution.
• There is no jurisdiction of institutions like CAG, Lokpal, CBI etc. in J&K due to Article 370, this impedes anti corruption drive.
• Right to Information (RTI) is not applicable to the J&K, which makes the state government less accountable and transparent.
• Separatist politics in the state has a very bad affect on inter-communal relations and perceptions in other states of the Indian Union.

What is Article 35A

• Under Article 35A of the Indian constitution J&K legislature is empowered to define “permanent residents” of the state and also their special rights and privileges.
• Article 35A of the Indian Constitution enables J&K to make a distinction between permanent and non-permanent residents in some aspects like settlement in the state, employment etc.
• Special rights and privileges are provided in government jobs, acquisition of property, scholarships and other public welfare schemes.
• The law passed by state legislature cannot be challenged for violating the Indian Constitution.
• Article 35A was included into the Indian Constitution in 1954 by an order of the then President Rajendra Prasad under Article 370 (1) (d) on the advice of the Jawaharlal Nehru Cabinet.

Why is Article 35A Debated?

• In 2014 Article 35A was challenged by an NGO (We the Citizens) in Supreme Court on grounds that the article was not added to the Constitution through amendment under Article 368.
• It was never placed before the Parliament, thus bypassing parliamentary route of lawmaking.
• Constituent Assembly which drafted the Indian Constitution had four representatives from J&K and the state was never given any special status in the Constitution.
• Article 370 was only a ‘temporary provision’. The article was added only to bring normalcy in the state and to consolidate democracy in the State.
• The Article promotes “class within a class of Indian citizens” and is against the “very spirit of oneness of India”.
• Fundamental rights under Articles 14, 19 and 21 of the Indian Constitution is violated because citizens from other States are restricted from getting employment or buying property within J&K.
• The article impedes gender equality as it is unfair to the women marrying a person other than permanent residents of Jammu and Kashmir.
• The validity of Articles 370 and 35A can be decided by a Constitution Bench of the Supreme Court (SC) of India.
• Presidential powers to modify Article 370(1)(d) was discussed in 1961 judgment by the Supreme Court in Puranlal Lakhanpal versus The President of India.

Arguments in Support of this article

• J&K’s autonomy would be eroded if Article 35A is removed.
• Other states like Nagaland (Article 371A) and Mizoram (Article 371G) have been provided special rights in the constitution because of historical reasons.
• Demographic status of the J&K is protected because of Article 35A.
• The leading political parties in the state, NC and PDP support the continuance of Article 370 and 35A.

Consequences if Article 35A is removed

• If the article is removed, separatists might get a chance to fuel violence in the Kashmir
• The Fundamental Rights and every other provision to J&K which is because of the Presidential order would cease to apply.
• Only Article 1 and Article 370 of the Indian Constitution will then apply to J&K.

Conclusion

• The issues which deal with Article 35A and Article 370 are very complex in nature.
• The matter should be best left to the wisdom of the Honorable Supreme Court of India; it will consider all aspects of these issues.
• The Supreme Court should try to maintain a balance between the special status as guaranteed to the people of J&K by the Indian Constitution and at the same time uphold the fundamental rights of the people.
• The political parties of J&K should also act responsibly and should refrain from inflaming popular passions on these sensitive issues.
• Other stakeholders should also understand the negative implications of doing politics over the demand for complete abolition of Article 370.
• Removal of Article 370 would also have negative repercussions for other states like Mizoram and Nagaland which are considered as special states. This will be very bad for national security as these are important Border States.