What are Article 370 and 35A – History and Provisions

By | August 5, 2019

What are Article 370 and 35A? Are they amendable? If abrogated can it solve the long standing political dispute in Jammu and Kashmir?

Here’s an explainer on Article 35A and 370
Article 370 grants an autonomous status to J&K, while Article 35A, incorporated into the Constitution in 1954, provides special rights and privileges to the citizens of the state.

What the two articles mean:

Know all about Article 370

History of Article 370
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.

Temporary provision or not?
A petition filed by Kumari Vijayalakshmi Jha challenged the validity of Article 370 against the Delhi High Court’s April 11, 2017 order. The petition had said that the continuance of the temporary provision of Article 370 even after dissolution of Constituent Assembly of J&K, and that of J&K Constitution, which has never got the assent of the President of India or Parliament or the government of India, “amounts to fraud on the basic structure of our Constitution”.

Article 35A – What is it?
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.

What will happen if Article 35A is repealed?
Repealment of Article 35A by the Supreme Court of India or by the government will have some far-reaching implications. Before Article 35A was introduced to the Constitution of India, the Governor and the Chief Minister of Jammu and Kashmir were addressed as the Sadr-e-Riyasat (President) and Wazir-e-Azam (Prime Minister). There’s a possibility that if Article 35A is repealed, it would lead J&K back to the same arrangement.

The jurisdiction of the Supreme Court and the Election Commission of India would also be curtailed. The legal control of the Centre over Jammu and Kashmir would be limited only to the matters of Defence, External Affairs and Communication.

Which parties are against the removal of Articles 35A and 370
All Kashmir valley based parties, including the National Conference

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