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.
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. 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.
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,—
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.
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, 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 , Sampath Kumar v State of J and K . 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.
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:
The various special treatments given to the state Jammu and Kashmir are as follows:
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.
Arguments in Favour of Special Status to Jammu and Kashmir
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 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”.
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.
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.
 Article 35A and the Future of Stability in Kashmir, Dhruv C Katoch
 Article 35A: Implications for Jammu and Kashmir, Rights Policy Watch, Volume 7, Issue 04
 1959AIR 759
 1969 AIR 1153
 Ashok Kumar & others v State of Jammu & Kashmir & Ors., SWP no.1290/2014