When India gained Independence from the British, the Indian Independence Act, 1947 introduced the Instrument of Accession (IoA). The Act provided three options: either to remain an independent country, join India, or join Pakistan. J&K initially decided to remain independent but ended up joining India after India saved the state from an invasion by Pakistan.
The original accession of state was on three matters, namely, defence, foreign affairs, and communications. However, at the time of drafting the Indian Constitution, the representatives of the Constituent Assembly of the state proposed that only those provisions of the Indian Constitution which correspond to the original IoA should apply to the state.
This means that the Parliament needs the Jammu and Kashmir government’s approval for applying laws in its state – except in cases of defence, foreign affairs and communications.
Accordingly, Article 370 was incorporated into the Indian Constitution. It gives special status to the residents of J&K and permits the state to draft its own constitution. It restricts Parliament’s powers in respect of J&K, other than those relating to defence, foreign affairs and communications.
Article 370 was supposed to be a temporary provision, to last till the formulation and adoption of the State’s Constitution. However, the State’s constituent assembly dissolved without abrogation or amendment of Article 370. It was later held to have acquired permanent status through decisions of Supreme Court and High Court.
Understanding the special issue of J&K under Article 35A
Article 35A was the result of a discussion between the then Prime Minister of India, Jawaharlal Nehru, and the leader of the State, Sheikh Abdullah. It was added to the Constitution through a Presidential Order passed under Article 370(1)(d) which empowers the President to make constitutional provisions applicable to the State with such modifications and exceptions as he may by order specify. Article 35A gives special rights to the permanent residents of Jammu and Kashmir.
The literal wording of the Article 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:
(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 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 this part.”
Article 35A confers powers on the State Government to give special benefits or rights, to the permanent residents of the State, and it also proscribes non-permanent residents from permanently settling in the State, buying immovable property, acquiring land, applying for government jobs, any kinds of scholarships and aids.
There was a petition filed before the Supreme Court challenging the constitutional validity of Article 35A on the grounds that the Article was not added to the Constitution following the usual procedure under Article 368 by going through the Parliament. Also, Article 35A violates Article 14, Equality before the Law – non-resident Indian citizens cannot have the same rights and privileges as the permanent residents of J&K. Article 35A is also a violation of women’s rights, and the Schedule Castes and Scheduled Tribes people.
Government proposes to revoke Article 370
Union Home Minister, Amit Shah, has introduced a Bill to remove Article 370 in the Rajya Sabha. The government also proposed to introduce a Bill for the re-organisation of Jammu and Kashmir. The Bill proposes to make J&K a Union Territory with legislature and Ladakh a Union Territory without a legislature.
After Amit Shah proposed that the regulation under Article 370 will not be applicable after the Presidential assent, the Rajya Sabha witnessed massive uproar with the Opposition completely against the Centre over the move.
Before the introduction of the bill, the Kashmir issue shook the Rajya Sabha as Congress leader, Ghulam Nabi Azad, raised the current situation in Kashmir. Entire Kashmir is under curfew. It’s a war-like situation. Kashmir is on edge as the authorities have suspended mobile phone and internet services and either “arrested” or “detained” several leaders in fast-paced developments on Sunday night. Mahindra group Chairman, Anand Mahindra, has said that one could not pretend that it was just another Monday morning as the country is waiting for the Centre’s announcement on the Kashmir issue after a Union Cabinet meeting. “Cannot pretend this is just another Monday morning”, “Can only pray for the safety of everyone there & for an outcome that makes the nation stronger & the future more positive.” Anand Mahindra tweeted.
Article 370, which gives special status to Jammu & Kashmir, has been revoked by the President of India, Ram Nath Kovind, under the presidential order issued by him in exercise of his powers conferred on him by clause (1) of Article 370 of the Constitution. The President has also issued a presidential order revoking Article 35A of the Indian Constitution.