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ISSN: 2581-8465

Author: Ms. Deepsikha, Research Scholar

Article 35A: Part of the Constitution of India

An extensive number of political and barrier examiners quality instability in Jammu and Kashmir (J&K) to India’s failure to completely coordinate the state into the Union. The difficulties towards such incorporation have authentic roots, dating to the conditions under which the state, driven by Maharaja Hari Singh, consented to India, following Pakistan’s endeavors to attach the state through power. Truly, Pakistan has additionally reliably offered help to psychological militant and nonconformist developments in J&K and has likewise stretched out such help to advance dread in different pieces of the nation, in promotion of its own advantages. The third factor is the burden of Article 370 in the Indian Constitution and the expansion of Article 35A, through the arrangements of Article 370.

Going through the pages of your Bare Act of the Constitution of India, if you try to find Article 35(a) after Article 35, you would fail to get it. It can be pointed in Appendix I of the Constitution of India. It is a unique provision for the people of Jammu and Kashmir in the Indian Constitution. It is a provision exclusively for the people of Jammu and Kashmir through a Presidential Order issued in the year 1954. This Article empowers the State legislature of Jammu and Kashmir to define the State’s ‘permanent residents’. Although it was enacted in the year 1954 but people were not well aware about this provision unless and until cases were filed in the Supreme Court of India challenging the validity of such provision.This lead to immense debates in many forums and Jammu and Kashmir issue has always been the most debatable and controversial issue in the history of India which is still persistent even after 70 years of Independence of India.This paper discusses the history of the Kashmir issue, inconsistent with Articles 35(a), 370, part IV of the Indian Constitution, along with the arguments in favour and against the special status given to Jammu and Kashmir.

Nature of Acquisition of Jammu and Kashmir

The history of acquisition of Jammu Kashmir dates back to the time when India and Pakistan got independence and became two different States on 15th August 1947 and 14th August 1947 respectively at the time of which Jammu and Kashmir was independent and was on neither side. There was an agreement between Jammu and Kashmir, Pakistan and India that neither India nor Pakistan will attack on Jammu and Kashmir. India respected the agreement while on October 6 1947, Kashmir was attacked to capture it by force by “Azad Kashmir Forces” backed up by Pakistan. At such a crucial time in order to save Kashmir Maharaja Hari Singh acceded Jammu and Kashmir to India.[1] But during this time certain commitments made by the then prime minister Jawaharlal Nehru, led to one of the most controversial Article of the  Indian Constitution which is, Article 370. The ruler signed an instrument where they surrendered powers in just 3 fields i.e. defence, communication and external affairs. The power that is enjoyed by this state is very much different from that of the other states.

Enactment and Implications of Part 21 of the Constitution of India

Part 21 of the Indian Constitution empowers “Temporary, Transitional and Special Provisions” from Article 369 to 392. This part of the Constitution of India provides special status to Jammu and Kashmir (Art 370), State of Maharashtra and Gujarat (Art.371), Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art. 371C), (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art. 371H), Goa (Art. 371-I) and Karnataka (Art. 371 J).

Article 35(a) reads as;

“Saving of laws with respect to permanent residents and their rights.—Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,—

  • Denning the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
  • Conferring on such permanent residents any restrictions as respects—
  • Employment under the State Government;
  • Acquisition of immovable properly in the State;
  • Settlement in the State;or
  • Right to scholarships and such other forms of aid as the State Government may provide, 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 of this Part”.

Along with Jammu and Kashmir,the Constitution has empowered other states as well with special status but the provisions like Article 35(a) make it more partial, biased and discriminating.
The text of the Article 370 is read out as;

(a) the provisions of Article 238 shall not apply 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 Government 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 purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;

(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 proviso 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.

Background

The laws gone by the Parliament subjects in the Union and Concurrent records would not naturally be legitimate in the state except if the President of India in simultaneousness with the state government announced them material to the state.

This was done in exercise of the forces presented by proviso (1) of Article 370. The Article 370 was presented, remembering the circumstance in J and K. India offered mix on specific terms and conditions and with it exception from use of every Indian law. Gopalswamy Ayyengar[2], who moved the Article 370 in the Constituent Assembly, in 1949, referenced the extraordinary conditions in the Jammu and Kashmir state as pursues:

1.         The war inside the express a truce had held since the start of the year (1949) yet conditions are still uncommon and anomalous, ordinary life not yet reestablished.

2.         Part of the state is still in the hands of revolutionaries and foes.

3.         Entanglement with the United Nations over the issue of J&K and the Government’s responsibility to giving the general population of the State the chance to choose for themselves whether they wish to stay with the Republic or to abandon it (counting a plebiscite if the correct conditions win)

4.         Agreement that the desire of the general population, through a Constituent Assembly, will decide the constitution of the state and the circle of Union ward over the state.

Ironically, the initial two uncommon conditions are as yet a reality for Jammu and Kashmir’s social and political condition considering the constant passings and dissents it has been seeing.

This has been avowed by the Supreme Court too, on account of Prem Nath Kaul v Nath Kaul v State of J and K[3] , Sampath Kumar v State of J and K[4] . Sampath Kumar expressed that Art. 370 of the Constitution have never stopped to be usable, it held that there can be no test on this ground to the legitimacy of the Orders gone by the President in exercise of the forces presented by this Article.[5]

Agreements between Jammu &Kashmir and India

The instrument of accession signed as mentioned above there added various clauses and conditions in the form of an agreement between Jammu and Kashmir and India.During that that it was envisaged as temporary provisions which is now called as special status can be briefed as follows:

  1. According to this agreement, the State surrenders its autonomy in the matter of defence, external affairs and communication.
  2. The State was given the autonomy to draft its Constitution with the help of its own constituent assembly.
  3. Article 370 was temporarily added to the Constitution of India in order to make the above features effective.
  4. Jammu Kashmir was specified in the category of Part B states in the original Constitution of Indian waving back to 1950.
  5. Laws on the Union list and Concurrent list will be made by the Union only by taking consent of Jammu and Kashmir including Article 1.

The various special treatments given to the state Jammu and Kashmir are as follows:

  1. The name, area, or boundary of Jammu and Kashmir cannot be altered without the consent of the State Legislature.
  2. Part IV of the Constitution of India is not applicable here which deals with the State governments.
  3. The Residuary powers that belongs to state, except in cases of prevention of activities for example cases of terrorist activities, questioning and disrupting the sovereignty and territorial integrity of India and causing disgrace to the national flag, national anthem or the supreme law of the land.
  4. In Jammu and Kashmir right to property is still considered as a fundamental right.
  5. Even some special rights are guaranteed to permanent residents of state in respect of acquisition of immovable property, public employment, settlement and government scholarships.
  6. It is important to note that Fundamental duties and Directive Principles of state Policies are not applicable in Jammu and Kashmir.
  7. Even during national emergency because of internal disturbance will have no impact here except with the concurrence of state government.
  8. In Jammu and Kashmir financial emergency cannot be declared.
  9. The High Court of Jammu and Kashmir is only allowed to issue writs for Fundamental rights enforcement and cannot issue any other writs.
  10. Citizenship rights cannot be denied of migrants to Pakistan.
  11. The 5th and 6th schedule of Indian Constitution are not applicable in Jammu and Kashmir.
  12. Official language provisions are applicable only how much they can relate to the official language of the State.
  13. Any amendment made to the Constitution of India does not apply to jammu and Kashmir unless it is extended to it by a Presidential Order.
  14. President rule can be applied only on the ground of failure of constitutional machinery of state constitution and not of Indian constitution.
  15. The consent of State legislature is also taken into account in matter of international treaties or agreements.

It is a high time that relation between Jammu and Kashmir and India must be harmonized as fast as possible in order to have a peaceful India. The forever controversial issue must be resolved in order to develop and prosper in the contemporary world in all fields. The panacea lies in resolving this conflict by making it a priority without compromising the integrity and security of India because if an organ of a body is damaged then that affects the whole body and the whole body cannot properly function. In the same way if India is considered as “Bharat Maa” Jammu and Kashmir is supposed to be her head and if such a vital organ does not function well, India can never be at peace.

Special Status to Jammu and Kashmir: A necessary Evil

Arguments in Favour of Special Status to Jammu and Kashmir

  1. The local people will lose their job if migrants go to Jammu and Kashmir and their special status is curbed out.
  2. The local people have to migrate and will lose their properties if people of other states start purchasing their properties.
  3. They have their own constitution and laws with respect to many matters. This might become suddenly a very drastic change for them too to adapt.
  4. It was the agreement made in October,1947 that had led it to surrender their autonomy to India and these were the conditions which were signed during that time, if not respected can altogether might lead to a new revolution.
  5. There will be opposition from Hindu dominated Jammu and Muslim dominated Kashmir.
  6. The business community will take up the entire business sector loosing scope for the local business community and they will be sidelined.That might be lethargic for the state’s economy.

Arguments Against Special Status to Jammu and Kashmir

The Parliament can make any laws for the State only with the consent of the State legislature which in itself is discriminating in nature between the States.The Union also cannot make laws on preventive detention laws for Jammu and Kashmir,it can be done only by its State legislature.

Financial emergency cannot be declared in this Sate in case of internal disturbances. Emergency can only be declared case of war or external aggression.

Directive Principle of State Policy and Fundamental Rights are not applicable to Jammu and Kashmir.

Till date the people here enjoy the right to property as a fundamental right.

Jammu and Kashmir does not have to give a detailed account of the amount of money that flows into the State and its purpose and usage.  

Indian citizens even from other states cannot purchase property in Jammu and Kashmir.

The order of the Apex court i.e the Supreme Court of India has no validity within Jammu and Kashmir.

The citizens of Jammu and Kashmir have dual citizenship.

Term of Jammu Kashmir’s assembly’s election is 6 years whereas it is 5 years for the other States.

Article 370 allows a Pakistani to get Indian citizenship who marries a Kashmiri girl.

In a PIL[6] of an NGO against the special status to Jammu and Kashmir with the plea that it is discriminating against the non-residents to public policies, jobs and restricting them to take part in real estate business the apex court held, “Article 370 though titled as ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions’ has assumed place of permanence in the Constitution,” it observed. “It [Article 370] is beyond amendment, repeal or abrogation, in as much as the Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal”.The learned scholar A G Noorani states in his article “Article 35A is beyond challenge. In India the lust for uniformity possesses communal-minded majoritarian” that “The judgment delivered by Justices Muzaffar Hussain Attar and Ali Mohammad Magrey of the High Court of Jammu & Kashmir on 16 July 2015, is of historic significance, quite apart from its cogent analyses; especially of Articles 370 and 35A”.

Analyzing the Issue: Human Rights, Unity and Integrity, Federalism and Equality

Back in 1947 with the development of an agreement in a state of war certain conditions were made. The people who signed such an agreement, practically it was not possible for them to think about the same even after 30-40 years. And today in 2018,its more than 70 years of independence and still we the Indians have not yet been able to cure a vital organ of our mother India. This issue is not only a hindrance to the development of India but also because of this each and every rights of the people in Jammu and Kashmir are being violated. There are mass killing of people and the violation of their basic human rights. When there is an open fire between the army of both the States, ultimately those who suffer in not only the Indian Army but also the innocent common people in Kashmir who have no fault at all.

In a democratic country like India where we have a most diversified country in terms of culture, religion, caste, creed, languages but still stand together as Indians, such issues like Kashmir is a threat to our unity and integrity. It is a matter of great concern that this issue not only is diving us demographically but also politically, religiously, economically and socially too.

Federalism is one of the basic features of the Indian Constitution where there is distribution of power between the centre and the States. But in case of Jammu and Kashmir the centre or union has a very limited power to make, execute and interpret the law of this State. For the Union to make any act or policy to be applicable there except those three matters it has to get the consent of the State legislature and it should be done through Presidential Order only. This is also a threat to the very essence of federalism in India.

[1] Article 35A and the Future of Stability in Kashmir, Dhruv C Katoch

[2] Article 35A: Implications for Jammu and Kashmir, Rights Policy Watch, Volume 7, Issue 04

[3] 1959AIR 759

[4] 1969 AIR 1153

[5] Ibid

[6] Ashok Kumar & others v State of Jammu & Kashmir & Ors., SWP no.1290/2014