ARTICLE 370 & 35 A (can it be repealed?)

As tensions gone up in Jammu and Kashmir, Union Home Minister Amit Shah moved proposal to remove Article 370 in the Rajya Sabha on Monday.

The revocation of Article 370 was announced by Home Minister Amit Shah in the Upper House of Parliament today, ending 70 years of stated policy on the state. The proposal came after Prime Minister Narendra Modi held a meeting of Union Cabinet morning. Government plans reorganisation of Jammu and Kashmir as union territory, Shah informed Rajya Sabha. Shah urged members of parliament to discuss the legislation that seeks to end autonomous status for Kashmir, which allows only residents to buy property and hold state government jobs.

The resolution comes after political leaders in Jammu and Kashmir including former Chief Ministers Omar Abdullah, Mehbooba Mufti and Jammu and Kashmir People’s Conference chairman Sajad Lone, were placed under house arrest as strict restrictions were imposed in the Kashmir Valley from early Monday morning.

Resolution to scrap Article 370

On 5th August 2019, Home Minister Amit Shah moved resolution to scrap Article 370 in the Rajya Sabha and also reorganize the state with Jammu & Kashmir serving as one of the union territories and Ladakh region separated out as a separate union territory.

So, what is article 370 & 35A?

Article 370

First will see the history from were it emerged

In October 1947, the then-Maharaja Hari Singh of Kashmir signed the ‘Instrument of Accession’, which specified three subjects on which Jammu and Kashmir would transfer its powers to the government of India: 1. Foreign affairs, 2. Defence and 3. Communications. In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as the prime minister. In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370. The controversial provision was drafted by Sheikh Abdullah.

What are the provisions of Article 370?

Parliament needs the Jammu & Kashmir government’s nod for applying laws in the state — except defence, foreign affairs, finance, and communications.

The law of citizenship, ownership of property, and fundamental rights of the residents of Jammu & Kashmir is different from the residents living in rest of India. Under Article 370, citizens from other states cannot buy property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency.

It is important to note Article 370(1)(c) explicitly mentions that Article 1 of the Indian Constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it is Article 370 that binds the state of J&K to the Indian Union. Removing Article 370, which can be done by a Presidential Order, would therefore make the state independent of India.

370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution, —

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir.

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Gov. of the state are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

Article 35A

What is 35A?

Article 35A gives the Jammu & Kashmir Legislature full discretionary power to decide who the ‘permanent residents’ of the state are.

It gives them special rights and privileges regarding employment with the state government, acquisition of property in the state, settling in the state, and the right to scholarships and other forms of aid that the state government provides.

It also allows the state legislature to impose any restrictions upon persons other than the permanent residents regarding the above.

To guarantee these special rights and privileges, the Article says no act of the state legislature that comes under it can be challenged for violating the Constitution or any other laws.

In simple terms 35A is:

Article 35A allows the Jammu and Kashmir legislature to define permanent residents of the state. It was inserted through the Constitution (Application to Jammu and Kashmir) Order, 1954, which was issued by President Rajendra Prasad under Article 370, on the the advice of the Nehru-led Union Government.)

When the J&K Constitution was adopted in 1956, it defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident of the state for 10 year.

Can Article 35A be nullified? What will happen if Article 35A is repealed?

In case the Article 35A is repealed, it will allow people from rest of the Indian states to acquire property in Jammu and Kashmir, settle there just like any other state in the country with equal rights.

However, legal experts are of the view that the article cannot be revoked as Article 35A was issued in exercise of the powers conferred by Article 370 (1) of the constitution, basis which the state enjoys its autonomy. These two articles are the constitutional connection between Jammu and Kashmir and the Central government and any tinkering with them will render the Treaty of Accession null and void. The ruler of Jammu and Kashmir Maharaja Hari Singh signed this treaty in October 1947 agreeing to accede to the Dominion of India.

The High Court of Jammu and Kashmir had in October 2015 ruled that Article 370 cannot be annulled as the clause (3) of the article bestows the power to rescind the article upon the state constituent assembly. But, as the constituent assembly, was dissolved in 1957, it did not take any such move to revoke the article, and the article acquired a permanent status irrespective of being designated as a temporary provision of the Constitution.

The Supreme Court in 2018 had opined on the similar lines and said that since the state constituent assembly has been discontinued, the President of India would not be able to implement or execute the obligatory provisions required for its withdrawal.

Hence, if the Article 35A has to be abrogated again, it cannot realise the compulsory provisions which are indispensable under Article 370 as the article is a part of a series of presidential orders implemented under Article 370 of the Constitution.

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January 2021