Historical decision of Narendra Modis Government on scrapping of
controversial Articles 370 and 35-A and bifurcation of Jammu and Kashmir (J&K)
have opened the debate on legality and propriety of Governments move
After Pulwama attack on 14th February, a concern about J&K
specifically abrogation of Article 370 and Article 35-A of Indian Constitution
became more intense and vigorous. Thus, before saying GOOD BYE to Article 370
and Article 35-A, it is imperative to understand the legal as well as historical
background of Article 370 and Article 35-A.
Article 370 of Indian Constitution provides autonomous and special status to
J&K. Instrument of Accession signed by Maharaja Hari Singh in October 1947,
officially segregated J&K from India. Historically, J&K was a princely state of
British Empire in India and was ruled by a Jamwal Rajput Dogra Dynasty. After
the first Anglo-Sikh War (11th December 1845 – 9th March 1846), Kashmir was sold
to Maharaja Gulab Singh (Raja of Jammu) under the Treaty of Lahore and the
Treaty of Amritsar, for the payment of 7.5 million rupees and was granted the
title Maharaja of J&K.
Immediately after the independence of India and Pakistan, Muhammad Ali Jinnah, a
lawyer, politician, founder and first Governor-General of Pakistan sent muslim
tribes to attack and invade Kashmir. The muslim tropes were nearly succeeded in
capturing Srinagar and thus with the fear of losing Kashmir to Pakistan,
Maharaja Hari Singh who wanted to keep J&K independent requested India for its
assistance. In order to defend J&K from the grave situation created by Pakistan,
Maharaja Hari Singh acceded to India. And consequently on October 26, 1947,
Maharaja Hari Singh signed the 'Instrument of Accession' which was provisional
Drafting of Article 370:
Special status to J&K was granted under Article 306-A of draft Constitution as
per clause 7 of Instrument of Accession which was later on enriched as Article
370 in Indian Constitution. Maulana Hasrat Mohini, a freedom fighter and a great
poet objected the special status to J&K in Constituent Assembly and asked for
the reason of discrimination. Dr. B.R Ambedkar the chair-person of Drafting
Committee interestingly refused to draft Article 370. Sardar Vallabhai Patel was
also against of inclusion of Article 370 because of its discriminative nature.
Erstwhile Prime Minister Jawaharlal Nehru then directed kashmiri politician and
former chief governor of J&K Sheikh Abdullah to draft Article 370. Sheikh
Abdullah never wanted Article 370 to be inserted as temporary provision in
Constitution. He insisted for his iron clad guarantees of autonomy for J&K,
which India did not accept. Finally, the Article was drafted by Gopalaswami
Ayyangar who was a minister without portfolio in the first Union Cabinet of
India and was in favour of inclusion of Article 370 in Constitution.
At the time of Partition, Lord Mountbatten persuaded Pt Jawaharlal Nehru to take
the issue of J&K to United Nations, as Lord Mountbatten was against sending
Indian troops to Srinagar until Maharaja Hari Singh had signed the Instrument of
Accession to India. But Sheikh Abdullah with his core ambition of ruling
Princely State independently persuaded Pt Jawaharlal Nehru to grant special and
autonomous status to J&K. Consequently, a marathon discussion spanning 5 months
between Pt Jawaharlal Nehru and Sheikh Abdullah gave birth to Article 370.
Gist of the Article:
Except for Defence, Foreign Affairs, Finance and Communications and ancillary
matters stated in Instrument of Accession, the Indian Parliament needs the
concurrence of Government of J&K for applying all other laws. In 1950, the
Constitution (Application to J&K) order which was replaced in 1954 by order with
same title, was promulgated by President of India in consultation with J&K which
specified matters listed in Union List and Articles with respect to which Union
Parliament is competent to make laws for J&K. However, over the period of time
through Presidential Order large number of provisions of Indian Constitution
have applied to J & K and eroded Article 370 substantially.
All the laws governing citizenship, ownership of property, fundamental rights,
directive principles of state policy, fundamental duties are not applicable to
Emergency in J&K can be declared only on the ground of state of external
aggression and war. Government of India cannot declare state and financial
emergency under Article 356 and 360 in J&K. Article 352 of Indian Constitution
pertaining to national emergency is applicable to J&K with certain restrictions.
Article 368 of Indian Constitution which deals with Amendment does not apply to
J&K. Thus any changes brought by amendments can-not be implemented in J&K unless
President passes an order, provided it has acceptance of State.
Citizens of other States in India cannot buy property in J&K.
After the Hon'ble J&K High Court's judgment on 7th October 2002, J&K women
marrying a person without permanent resident did not lose her permanent resident
status, right to work, education and inheritance. But the children of women
marrying a person without permanent resident and their husbands are not entitled
to inherit the property and to buy or sell it.
Abrogation of Article 370:
Article 370(3) states that 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 Constituent Assembly of state referred to in clause (2)
shall be necessary before the President issues such a notification.
Thus, after considering the provisions of clause (3) of Article, recommendation
of Constituent Assembly is imperative. However, J&K has no longer Constituent
Assembly which poses a question whether article can be amended or removed by
Indian Parliament. However, in October 2015, in The High Court of J & k vs. Mubarik Shah Naqishbandi,
High Court of J&K had ruled that the Article 370 cannot be abrogated, repealed or even amended.
It further explained that the clause (3) of the Article conferred power to
the State's Constituent Assembly to recommend to the President on the matter of
the repeal of the Article. Since the Constituent Assembly did not make any such
recommendation before its dissolution in 1957, the Article 370 has taken on the
features of a permanent provision
despite being titled a temporary provision
in the Constitution.
On April 3 2018, the Hon’ble Supreme Court of India gave a
similar opinion declaring that the Article 370 has acquired a permanent status.
It stated that, since the State Constituent Assembly has ceased to exist,
the President of India would not be able to fulfill the mandatory provisions
required for its abrogation.
Article 35-A was incorporated in Indian Constitution in 1954 on the order of
first President Rajendra Prasad with aid and advice of Pt. Jawahar Nehru
cabinet. Presidential Order of 1954, officially The Constitution (Application to
Jammu and Kashmir) Order, 1954 was issued under Article 370 (1) (d) of the
Constitution with the agreement of States Constituent Assembly.
Order of 1954,
was further issued to implement the Delhi Agreement 1952 entered into between
Pt. Jawahar Nehru and Sheikh Abdullah which extended Indian Citizenship to the
permanent residents of J&K (formerly called as ”State Subjects”). Nonetheless,
the State Legislature was given power to make laws for conferring special rights
and privileges in public sector jobs, acquisition of property in state,
scholarships and other public aid and welfare. Concurrently, Article 35-A was
inserted in the Constitution empowering the State Legislature of J&K to define
the privileges of the permanent residents of J&K.
Bear provisions of Article 35-A:Saving of laws with respect to permanent residents and their rights.
Not withstanding anything contained in this Constitution, no existing law in
force in the State of Jammu and Kashmir, and no law thereafter enacted by the
Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent residents of
the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or
imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government
shall be void on the ground that it is inconsistent with or takes away or
abridges any rights conferred on the other citizens of India by any provision of
Issue over Article 35-A:
# The Constitution of J&K which was adopted on November 17, 1956, defined the
term “Permanent Resident” in its Part III as ‘Every person who is or is deemed
to be, a citizen of India under the provisions of the Constitution of India
shall be a permanent residents of State, if on 14th day of May, 1954 he was a
state subject or who has been a resident of state for 10 years and has lawfully
acquired immovable property. Thus, taking in consideration the provisions of
Article 35-A and Constitution of J&K, no outsider can own a property or can get
a job in J&K or voting in local elections. Thus, classification created by this
Article 35-A, violates Article 14 of Indian Constitution (Equality before Law
and Equal Protection of Law).
# Further, Article 35-A was passed by issuing Presidential Order which lacks the
parliamentary sanction. As addition or deletion of any article in the Indian
Constitution amounts to an amendment to the Constitution which can be done only
by the Parliament in accordance with the procedure laid down in Article 368.
Thus, President had bypassed the Parliament and procedure laid down in Article
368 to insert the Article 35-A in the Constitution.
# Article 370 does not confer on President legislative or executive powers so
vast that he can amend the Constitution or perform the function of Parliament.
# Again, insertion of this Article has affected private sector investors due to
property ownership restrictions.
# Article violates the fundamental rights of workers and settlers like Schedule
Caste and Schedule Tribe people who have lived there for generations.
# Article further violates the right of women to marry a man of their choice by
not giving the heirs any right to property, if woman marries a man that is not a
permanent resident of J&K.
# In March 1961, a five judge bench of Hon'ble Supreme Court's judgment in
Puranlal Lakhanpal vs. President of India discussed the powers of President to
modify Constitution under Article 370. Court had observed that under Article
370, President has power to modify the Constitution when making it applicable to
J&K. However, judgment is silent upon whether the President can introduce and
insert new Article without assent and knowledge of Parliament. Further, in 2014
writ petition was also filed NGO “WE THE CITIENS” which challenged the validity
of Article 370 and Article 35-A stating that articles are against the "very
spirit of oneness of India" as it creates a "class within a class of Indian
citizens". Restricting citizens from other States from getting employment or
buying property within J&K is a violation of fundamental rights under Articles
14, 19 and 21 of the Constitution.
# In August 2017, Charu Wali Khanna, lawyer and former member of the
National Commission for Women, had filed a petition against Article 35-A in the
Hon'ble Supreme Court after the J&K government refused to identify her as a
permanent resident because she didn’t have any documentary evidence to prove her
claim. She challenged Article 35-A on the grounds of “blatant gender
discrimination” which restrict the basic right to property if a native woman
marries a man not holding a permanent resident certificate. Even her children
will also be denied a permanent resident certificate.
# On August 6, 2018, Hon'ble Supreme Court Bench led by Justice Dipak Misra
stated that a three-judge bench would decide whether the pleas challenging
Article 35-A should be referred to a five-judge constitution bench for examining
the larger issue of alleged violation of the doctrine of basic structure of the
# In September 2018, Hon'ble Supreme Court of India has accepted the urgent
hearing of a PIL (Ashwini Kumar Upadhyay V. Union of India) challenging the
constitutional validity of the infamous Article 370 of the Constitution of
India. The PIL also prayed for declaration from the Hon'ble Supreme Court that
the separate Constitution of J&K is arbitrary and unconstitutional on many
grounds, including that it is against the supremacy of the Constitution of India
and conflicting to the motto of 'One Nation, One Constitution', 'One National
Anthem and One National Flag'. Further, PIL challenged Articles 6, 7, 8 and 144
of the Constitution of J&K as arbitrary and contrary to the fundamental rights
under the Indian Constitution i.e equality before law and equal protection of
law, equal opportunity in public employment, right to establish educational
institution, right to trade /business, etc., guaranteed under Articles 14, 15,
16, 19 and 21 of the Constitution of India.
Annulment of Article 370 and 35-A and bifurcation of J&K into 2 separate Union
Territories by Narendra Modi's Government though created political as well as
legal chaos in India, the move has been positively welcomed.
On August 5, 2019, Modi Government moved a resolution titled 'The Constitution
(Application to Jammu and Kashmir) Order, 2019' to abolish Article 370 and thus
Article 35-A and introduced a Jammu and Kashmir Reorganization Bill, 2019 to
divide the state into two Union Territories – J & K and Ladakh which was pass by
Rajya Sabha with 125 votes in its favour.
On 6th August President Ram Nath Kovind has issued a notification in exercise of
powers under Article 370 (3) read with Article 370 (1). Further, Bill was also
passed by Lok Sabha with 370 votes in its favour
# J&K has been reorganized into two Union Territories –Ladakh comprising of
Kargil and Leh districts and J & K comprising of territories of J&K other than
Kargil and Leh;
# J&K will have legislature while Ladakh will have no legislature;
# The present of Governor of J & K will be the Lieutenant Governor of both Union
Territories J & k And Ladakh;
# There will be no duel Citizenship;
# Tricolor will be the only Flag;
# Central Laws will be directly applicable to J&K;
# There wont be any separate laws for J & K;
# Centre can declare Financial emergency under Article 360;
# Indian Citizens from other states can buy lands and property in J&K;
# Minorities will be eligible for 16 % reservation;
# If women marries out of state or country she will still remain the Indian
citizen and will keep her all rights guarantee to her;
# Assembly duration in J & K will be for 5 years;
# Panchayats will have the same rights as that of other states;
# Right to Information and Right to Education will be applicable;
Consequently, revocation of largely debated and chaotic Article 370 and Article
35-A have paved the way for hopes and freedom in Valley. Modi Government's move
attracted positive as well as negative responses from all over the world and the
same will be politically debated next few weeks.
motto of 'One Nation and One Constitution', 'One National Anthem and One
National Flag have led the rebirth of J&K for its better development and
welfare. Thus, time has really come to raise as a one single Nation promoting
brotherhood and well-being of people in the democratic Country with two newly
born Union Territories.