Article 370 & Art 35A Explained: J&K Reorganization

Summary:

October 17, 1949 – Article 360A (now 370) was included in the Constitution by India’s Constituent Assembly. 

May 14, 1952 – Article 35A was added to the Constitution of India through a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President of India under Article 370.

August 5, 2019 – President Ram Nath Kovind issued a constitutional order superseding the 1954 order, making all the provisions of the Indian constitution applicable to Jammu and Kashmir.

August 6, 2019 – Following the resolutions passed in both the houses of the Parliament, President Ram Nath Kovind issued a further order declaring all the clauses of Article 370 except Article 1 to be inoperative. 

Article 370 – History

Article 370 was drafted in Part XXI of the Constitution – Temporary, Transitional and Special Provisions. It is enshrined with Jammu and Kashmir’s exemption from the Indian Constitution (except Article 1 and Article 370 itself). Article 370 also permits the state to draft its own Constitution. It restricts the Parliament’s legislative powers in respect of Jammu and Kashmir.

Indian Independence Act 

The Indian Independence Act, 1947, divided British India into India and Pakistan. The act gave the option to the princely states to –

• Remain an Independent country
• Join Dominion of India
• Join Dominion of Pakistan 

The joining to either of the two dominions was to be through an IoA (Instrument of Accession). The joining state had the right to specify the terms on which it agreed to join. IoA (Instrument of Accession) signed between two sovereign entities plays as a treaty between two countries as means to harmonize together. And such treaties are governed by the maxim pacta sunt servanda which in International Law means ‘promises must be honored and if there is a breach of contract, the parties must be restored to their original position’. 

Accession of Kashmir

During the Independence era, Maharaja Hari Singh was the ruler of Jammu and Kashmir. Raja Hari Singh had initially decided to remain independent and sign standstill agreements with both the nations and Pakistan had agreed to sign the agreement. But Afridi Tribesmen and Pakistan Army regulars invaded the state in plainclothes and Raja Hari Singh had to take the help of India. India agreed to do so in turn for the accession of Kashmir to India. After this, Hari Singh signed the Instrument of Accession on October 26, 1947, and Governor-General Lord Mountbatten accepted it on October 27, 1947.

India’s policy as to the accession was that all disputes on accession should be settled democratically and not by a ruler. This was in concurrence with the opinion of Lord Mountbatten who had stated that the question of State’s accession must be settled by a reference to the people and the same should be done as soon as law and order have been restored in Kashmir. As per Government’s White Paper on Jammu and Kashmir in 1948, the accession was purely temporary and provisional.

Instrument of Accession for Kashmir

The IoA for Kashmir was signed by Maharaja Hari Singh which gave the parliament the power to legislate in respect of Jammu and Kashmir only on Defence, External Affairs and Communications. Under Clause 5 of the instrument, Raja Hari Singh explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said, “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”.

Enactment of Article 370

Article 370 was a constitutional recognition of the conditions mentioned in the Instrument of Accession, and reflected the contractual rights and obligations of the two parties. The original draft was given by the Government of Jammu and Kashmir. Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949.

 

Article 370 – The Basics

As stated earlier the IoA declared that the State could not be compelled to accept any future Constitution of India. The State was within its rights to draft its own Constitution and to decide for itself what additional powers to extend to the Central Government. Article 370 was designed to protect those rights. According to the constitutional scholar A.G. Noorani, Article 370 records a ‘solemn compact’. Neither India nor the State can unilaterally amend or abrogate the Article except under the terms of the Article.

Article 370 embodied six special provisions for Jammu and Kashmir – 

• It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
• Central legislative powers over the State were limited, at the time of the framing, to the three subjects of defense, foreign affairs, and communications.
• Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
• The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
• The State Government’s authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalized the scheme of powers and dispersed, no further extension of powers was possible.
• Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.

Once the State’s Constitutional Assembly convened on 31 October 1951, the State Government’s power to give concurrence lapsed. After the Constituent Assembly dispersed on 17 November 1956, the only authority provided to extend more powers to the Central Government or to accept Central institutions vanished.

Temporary or Permanent?

Part XXI of the Constitution titled “Temporary, Transitional and Special Provisions” contains Article 370. It was considered temporary in the sense that Constituent Assembly of Jammu and Kashmir was given the right to modify/delete/retain it. The Constituent Assembly of Kashmir decided in its wisdom to retain it. Even the courts have decided on the issue on many occasions. 

• In Sampat Prakash (1968), the apex court decided that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. “Article 370 has never ceased to be operative,” the five-judge Bench said.
• The Supreme Court in SBI v Zaffar Ullah Nehru(2016) observed that the federal structure of the Constitution is reflected in Part XXI. The court also said that Jammu and Kashmir has a special status and that Article 370 was not temporary. The court referred to Article 369 of Part XXI that specifically mentions five years; no time limit is mentioned in Article 370. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.
• In Santosh Kumar (2017), the apex court said that due to historical reasons, Jammu and Kashmir had a special status.
• InKumari Vijayalakshmi Jha vs Union of India (2017), Delhi High Court rejected a petition that argued that Article 370 was temporary and that its continuation was a fraud on the Constitution. 
• In April 2018, the Supreme Court said that notwithstanding the word “temporary” in the headnote, Article 370 was not temporary.

Removal of 370

The question which arises next is that if Article 370 is temporary, then can it be deleted? Originally, Article 370 can be deleted by a Presidential Order. But such an order has to be preceded by the concurrence of Jammu and Kashmir’s Constituent Assembly. As stated earlier, the constituent assembly was dissolved on January 26, 1957. Therefore, the general conclusion would be that it cannot be deleted anymore. But there is another viewpoint that it can be deleted through the concurrence of the state assembly. 

Significance of 370

Article 1 of the Constitution of India defines the territory of India which includes Jammu and Kashmir in the list of states. Now, Articles 370 states that Article 1 applies to Jammu and Kashmir. In this sense, Article 370 could be described as a channel through which the Constitution of India is applied to Jammu and Kashmir. India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to Jammu and Kashmir. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of Jammu and Kashmir’s special status. By the 1954 order, almost the entire Constitution was extended to Jammu and Kashmir including most Constitutional amendments. Ninety-four of 97 entries in the Union List apply to Jammu and Kashmir; 26 out of 47 items of the Concurrent List have been extended; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules.

The Centre has used Article 370 even to amend several provisions of Jammu and Kashmir’s Constitution, though that power was not given to the President under Article 370. Article 356 was extended through a similar provision that was already in Article 92 of the Jammu and Kashmir Constitution, which required that President’s Rule, could be ordered only with the concurrence of the President. To change provisions for the Governor being elected by the Assembly, Article 370 was used to convert it into a nominee of the President. To extend President’s rule beyond one year in Punjab, the government needed the 59th, 64th, 67th, and 68th Constitutional Amendments, but achieved the same result in Jammu and Kashmir just by invoking Article 370. Again, Article 249 (power of Parliament to make laws on State List entries) was extended to Jammu and Kashmir without a resolution by the Assembly and just by a recommendation of the Governor. In certain ways, Article 370 reduces Jammu and Kashmir’s powers in comparison to other states. It is more useful for India today than to Jammu and Kashmir.

Article 3 of the Jammu and Kashmir Constitution declares Jammu and Kashmir to be an integral part of India. In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is categorical acknowledgment about the object of the Jammu and Kashmir Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof. Moreover, people of the state are referred to as ‘permanent residents’ not ‘citizens’.

 

Article 35A – Basics

Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, under Article 370. The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if they are Indian citizens, were not entitled to these ‘privileges’.

 

The scrapping of Article 370 and 35A

The special status enjoyed by Jammu and Kashmir under the Constitution of India was removed on August 5, 2019. President Ram Nath Kovind issued The Constitution (Application to Jammu and Kashmir) Order, 2019 for the same. The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers.

The Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. Therefore, the discriminatory provisions under Article 35A are now unconstitutional. The President may also withdraw Article 35A. This provision is currently under challenge in the Supreme Court.

The Jammu and Kashmir Reorganisation Bill, 2019 was passed in the parliament. In effect, the state of Jammu and Kashmir will now cease to exist; it will be replaced by two new Union Territories: Jammu and Kashmir, and Ladakh. UTs have become states earlier; this is the first time that a state has been converted into a UT. The UT of Jammu and Kashmir will have an Assembly, like in Delhi and Puducherry.

 

Not only has Jammu and Kashmir lost its special status, but it has also been given a status lower than that of other states. Instead of 29, India will now have 28 states. Kashmir will no longer have a Governor, rather a Lieutenant Governor like in Delhi or Puducherry.

It is also likely that corporates and individuals will be able to buy land in Jammu and Kashmir. Non-Kashmiris might now get jobs in Kashmir. A process of demographic change might begin, and progress over the coming decades.