Abrogation of Article 35A and Article 370

The Constitution of India is the largest globally, consisting of a Preamble, 25 Parts, 12 Schedules, and 448 Articles. Among 448 articles, two articles are related to Jammu and Kashmir— Article 35A and Article 370. These articles play a vital role in maintaining law and order concerning the State of Jammu and Kashmir.

The Constitution of India provides practices, rights, powers and duties of the Citizens of India. The articles of the Constitution got adopted from various Constitutions of various countries. After finalising the Constitution, it was adopted on 26 November 1949 and came into force on 26 January 1950.

Let’s look at Article 35A and Article 370 of the Constitution of India —the Articles considering essential provisions for the State of Jammu and Kashmir.

The history of the conflict and dispute over Jammu and Kashmir

Before, Independence of India in the year 1947 and the partitioning of the region into India and Pakistan. J & K was one of the states which were not under the control of the British.

The princely states that include the state of Jammu and Kashmir had an option to stay independent or be a part of any of the two dominions by Lord Mountbatten. The then Maharaja of Jammu and Kashmir decided to stay Independent of both the states. After rising against the ruler in Poonch and being invaded by a Pathan from Pakistan, Maharaja decided to turn to India for help and executed the Instrument of Accession.

Eventually, a direct conflict between India and Pakistan started until an UN-brokered ceasefire was signed on 1st January 1949. Again, In 1965, a war between Pakistan and India started over the State of Jammu and Kashmir. In 1971, India gained a territorial benefit over Kashmir during the war.

Over the years, many wars and battles took place between the countries over Jammu and Kashmir. The Government of India asserted Jammu and Kashmir as an integral part of India. And Pakistan believed it to be part of Pakistan.

Article 370

Article 370 of the Indian constitution was the temporary provision. This Article grants special status to the State of Jammu and Kashmir.

On the 17th day of October 1949, Indian Constitution included Article 370, exempting the State of Jammu and Kashmir from the Constitution of India. Only, Article 1 and Article 370 of the Constitution of India applied to the State.

Article 370 of the Constitution of India allows the State of Jammu and Kashmir to have their own Constitution. Many other laws apply to India, but the State of Jammu and Kashmir gets exempted from such laws.

Due to this Article, the J&K has total control over 94 items out of 97 items of the Union List. The centre has to take approval from the state government to implement a law for any 94 items. Thus, Jammu and Kashmir had different laws.

History of Article 370

After India’ Independence in 1947, the former ruler of Jammu and Kashmir, Maharaja Hari Singh, declared that Jammu and Kashmir would not be a part of India or Pakistan.

After the said announcement, Pakistan launched a non-official war. This war was launched to free the place from Hindu rule as more Muslims lived in the region.

When Maharaja Hari Singh was not able to protect the state, he sought help from the Government of India. The Government of India was ready to help, and the Maharaja of Kashmir agreed that Kashmir would be a part of India. And both the party, Maharaja of Kashmir and the Government of India, signed the Instrument of Accession. According to this, the accession treaty could not be amended without the consent of the state of Jammu and Kashmir. At the time of framing the Constitution of India, some important events took place, such as signing the Instrument of Accession, Ruler’s Proclamation, issued in 1948 and 1949.

Later, the Constitution of India was adopted on 17th November 1956 and came into effect on 26th January 1957. It was the only State of India to have its own Constitution and have special status.

Features of Article 370

• The State of Jammu and Kashmir has different flags and Constitution.
• The presidential rule cannot get imposed on the State of Jammu and Kashmir, and only the governor rule is imposed.
• The Government of India cannot declare a financial emergency in Jammu and Kashmir, and only a National Emergency can get imposed in matters of External aggression or war.
• The State of Jammu and Kashmir have their Criminal Code known as Ranbir Penal Code.
• Citizens of Jammu and Kashmir have dual citizenship.

Temporary Nature of Article 370

Article 370 has a unique character in itself. The consultation of the state government is required for matters related to the application of the Central law to the State of Jammu and Kashmir. For any other matters, the State Government must agree.

Article 370 of the Constitution is temporary as the Constituent Assembly of Jammu and Kashmir can modify, delete and retain the Article. Another reason behind the article being temporary was that public voting was to know the public’s wishes.

Also, at the time of the framing, the Constitution of India Ruler’s Proclamation was issued in 1948 and 1949. The Rulers Proclamation examined the creation of the Constituent Assembly for Jammu and Kashmir to enact its own Constitution. It was noted that the Constitution of India would apply to the State of Jammu and Kashmir and other states. It ordered that once the Constitution for Jammu and Kashmir commence, it would supersede other provisions.

Legal and Constitutional status of Jammu and Kashmir before Revocation of Article 370

Article 370 of the Constitution of India gets described as a temporary provision and grants special status to the Indian Union. Under this Article, only the Union Government can make laws for Jammu and Kashmir. However, the State can only make the laws after consulting the State Government on the matters specified in the Instrument of Accession. And other laws can only be made if the state government permits through a presidential order.

The State of Jammu and Kashmir has its Constitution, adopted by the Constituent Assembly on 17th November 1956 and came into force on 26th January 1957.

Another important part of Article 370 is the power of the President to amend or repeal Article 370, which can be done if the Constituent Assembly of the State gives recommendations before the president issues notification.

Article 35A

Article 35A of the Constitution of India provides special rights and privileges to the Permanent residents of the State of Jammu and Kashmir. This article was added to the Constitution of India by Presidential Order in 1954 and got issued under Article 370 of the Constitution.

The residents of Jammu and Kashmir get special rights and privileges. According to Article 35A provision, the definition of the permanent resident of India will not change. The provision will not change even if any other provision is given in the Constitution or any other law.

It further states that this Article will not be void even if other citizens of the country feel that their right gets violated. This right is related to the employment or acquisition of immovable property in Jammu and Kashmir.

History of Article 35A

During the Treaty of Amritsar in 1846, the British Government gave the State of Jammu and Kashmir to Maharaja Gulab Singh. Jammu and Kashmir were, then, treated as the Princely State.

After the adoption of Article 370 of the Constitution of India, the citizenship of India was extended to the people of Jammu and Kashmir. The Constituent Assembly of Jammu and Kashmir contends that existing law should prevail and the state should get treated differently. To fulfil the desire of the Jammu and Kashmir leaders, Article 35A in the Constitution of India.

Significance of Article 35A

Article 35A is the outcome of the agreement between the then Prime Minister of India Jawahar Lal Nehru and the then Prime Minister of Jammu and Kashmir, Sheikh Abdullah. This agreement required Indian Citizenship law to be made applicable to Jammu and Kashmir. And to regulate the rights and privileges of the State’s permanent residents.

The then President of the Country codified the agreement, and the Constitution (Application to Jammu and Kashmir) Order, 1954 got issued. This Order added Article 35A in the Constitution of India that allowed the State of Jammu and Kashmir to define the permanent residents and rights and privileges of the state.

The supporter of the Article 35A states that it aims to preserve the identity of the Muslim majority state.

Removal of Article 370 and 35A

In 2019, the minister of home affairs, Mr Amit Shah, introduced the Jammu and Kashmir Reorganisation Bill. The Bill got introduced in the Rajya Sabha on 5th August 2019, and the Bill was passed on the same day in Rajya Sabha and passed in the Lok Sabha on 6th August 2019.

The President approved the proposed bill on 9th August 2019. Hence, the Jammu and Kashmir Reorganisation Act 2019 was passed to abrogate Article 35A and Article 370 of the Indian Constitution.

Issues faced in Revoking

Article 370 is considered the basis of the Constitutional relationship between Jammu and Kashmir and the rest of India. Article 370 was the tunnel through which the Constitution gets applied to the State of Jammu and Kashmir.

India used Article 370 at least 45 times to extend the provision of the Constitution of India to Jammu and Kashmir. The Presidential Order under Article 370 can revoke the special status of Jammu and Kashmir.

In 1954, the entire Constitution was extended to Jammu and Kashmir, including Constitutional amendments. However, it got noticed that the said overriding effect will threaten the state’s peace, which is already a hotspot of conflicts.

The revocation will completely change the scenario between the other states and the State of Jammu and Kashmir. Also, this cleared the path to override Article 35A, which allowed Indian citizens to purchase land and settle permanently in the State of Jammu and Kashmir.

The effect after revocation of Article 370

The following effect took place after revocation of Article 370:

• Jammu and Kashmir will not have its flag.
• No dual Citizenship will prevail in the state, and a citizen of Jammu and Kashmir will be a citizen of India.
• Indians from other states will register themselves in the Voter’s list of Jammu and Kashmir.
• Orders of the Supreme Court will apply to the state of Jammu and Kashmir.
• Indian citizens will be able to purchase land in the state.
• Parliament will have all the rights to make laws for the state.

Conclusion

Jammu and Kashmir is an integral part of India. The state got rights and privileges under Article 370 and Article 35A. Such rights and privileges were provided due to its unique history. But there were issues related to both the Articles. Both the Articles were related to sensitive and complex issues.

The Government of India abolished Article 370 and 35A of the Constitution of India. It was done by a presidential order passed in the form of the Jammu and Kashmir Reorganisation Act 2019. By the said act Indian Government cancelled the special status provided to Jammu and Kashmir.