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Decoding Special Status of Jammu and Kashmir vis-à-vis Article 370 and 35A


Authored By- Riya Jariwala


Keywords: Instrument of Accession, Special Status, Article 370 and 35A


Abstract:

The Indian Independence Act, 1947 divided British India into two sovereign nations namely, India and Pakistan, while approximately 580 princely states that had signed subsidiary alliances with the British had their sovereignty restored in them. Consequently, these princely states were given the options of either joining India or Pakistan or remain independent. The princely state of Jammu and Kashmir under the erstwhile Dogra ruler Maharaja Hari Singh initially decided to remain Independent. However, Pakistan’s attempt to conquer Kashmir prompted the Dogra ruler to seek Indian assistance in resisting the Pakistani aggression. Eventually, Kashmir acceded to India by signing an instrument of accession in 1947.


This article attempts to declutter the special status accorded to the state of Jammu and Kashmir (J&K) under the Constitution via Article 370 and 35A and its aftermath.


Introduction:

In October 1947, the princely state of J&K signed an Instrument of Accession to India with concessions preserving the state’s autonomy in certain matters such as a retaining a different constitution, penal code, succession, property and land laws, governance regime, flag despite its accession to India.


The State Constituent Assembly was elected and met for the first time on 31st October 1951. Eventually, the ‘Delhi Agreement’ was signed between Prime Ministers of India and J&K giving special position to the state under the Indian Constitutional framework.

On 6th February 1954, the J&K Constituent Assembly ratified accession to the Indian Union. The President of India subsequently issued Constitution Order under Article 370 extending the Union Constitution to the state with some exceptions/modifications. Another provision was inserted in the Indian Constitution via The Constitution (Application to Jammu and Kashmir) Order, 1954 viz. Article 35A which allowed the J&K legislature to define permanent residents with their rights and privileges.


Interplay of Article 370 and Article 35A vis-à-vis The Constitution (Application to Jammu and Kashmir) Order, 1954:

Article 370 under the chapter of Temporary, Transitional and Special Provisions makes a temporary provision with respect to the state of J&K. The article limits the legislative powers of the Parliament of India for matters within the state since it mandates the Central government to acquire the J&KConstituent Assembly’s concurrence to enact and apply laws to J&K except in matters of Defence, Foreign Affairs, Finance and Communication.

Simply put, Article 370 empowers the President of India to define the constitutional relationship of the state in terms of the provisions of the Indian Constitution, subject to the stipulation that with reference to the matters in the Instrument of Accession he can do so in consultation with the state government and with reference to other matters, the concurrence of the state government is required.


A separate set of laws were to be enacted for the residents of J&K under Article 370 for subjects like Citizenship, Ownership and Acquisition of Property, Fundamental Rights in contrast with other states. One of the prominent consequence of this was that residents of other states were not allowed to purchase land in the state of J&K.

Article 370 is a special provision and an amendment made to the Constitution does not automatically apply to the state of J&K unless the President issues an Order under Article 370 with the concurrence of the State Government.


Under Article 370, the Constitution Order of 1954 was promulgated by the President of India in consultation with the Government of J&K. It specified matters with respect to which the Union Parliament was to be competent to make laws for the state. The Order inserted Article 35A in the Constitution of India defining permanent residents of the state and providing special rights and privileges to such permanent residents. These rights and privileges included the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment etc.


Apart from giving the State government the power to define permanent residents the Article provided for the following provisions for the state of J&K:

- Persons who are not the citizens of J&K cannot purchase immovable property in the state

- Persons from other states cannot become citizens of J&K

- The jurisdiction of the Supreme Court extends over the state except for Articles 135 (Jurisdiction and powers of the Federal Court under the existing law to be exercisable by the Supreme Court) and Article 139 (Conferment on the Supreme Court of powers to issue certain writs)

- The State was to be governed by a Constitution of its own drafted by its Constituent Assembly which came into force on January 26, 1957

- The State High Court was given power along with the Supreme Court of India to issue writs for the enforcement of Fundamental Rights.

- The State list under Schedule VIIhad been dropped in the State of J&K

- Proclamation of Governor’s rule instead of President’s Rule as is prevalent in other Indian states in the event of failure of constitutional machinery in the state. The Governor’s rule could last for a maximum period of 6 months after which if the situation still persists Article 352 of the Indian Constitution would lead to imposition of President’s rule.

- No Proclamation of Financial Emergency under Article 360 applies in the state.

- People who did not have a Permanent Residence Certificate could vote in the Lok Sabha Elections but were deprived of voting rights in local body and assembly elections.


Implications of Revocation of Article 370 and Article 35A:

August 5, 2019 marked a momentous event in the history of Independent India as J&K Reorganisation Bill 2019 split the state into 2 Union territories. While the constitutionality of this move is still debated amongst critics, its implications are far-reaching and would lead to integration of the state with India in spirit. It is speculated that this revocation would overcome the long-standing turmoil since last 7 decades in the region owing to separatist tendencies.


This revocation would now open doors for investment in the real estate of the state for all Indian citizens leading to manifold opportunities and commercial development. Many posts of Doctors, Professors remained vacant due to quota and residence conditions imposed in government jobs. However, the progress of the state would no longer be hampered by such restraints as the region would now be open to all Indian citizens in parity with other states.

This revocation would also diminish the gender bias created by virtue of Article 35A which deprived widows and wives of Non-Kashmiris from property and succession rights.


Owing to the effect of Article 35A, many Dalit communities, for instance, the Valmikis, Gorkhas, were deprived of equal employment opportunities despite holding adequate qualifications as a teacher, engineer, doctor, their roles were restricted to the post of a sweeper. They were also denied scholarships, admissions in technical fields, property rights etc. Tribal comprise 15% of the State’s population, but political reservations for Scheduled Tribes are non-existent and they are denied social justice and equitable distribution of opportunities. These regressive practices have been down away with as a consequence of this abrogation.


Conclusion:

The state of J&K was accorded special status to preserve its autonomy and retain its development. In contrast, over the decades, this led to the state’s development coming to a standstill owing to its stringent residence policies. By revoking Articles 370 and 35A of the Indian Constitution, India has truly begun the process of integration of the state of J&K with India leading the way for modernisation of the state.

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