Article 35-A & Article 370

Myth vs Reality.
 To be discussed...
• Historical Background.
• Article 370.
• Delhi Agreement, 1952.
• Article 35-A.
• Exclusive Special Provisions?
• Article 35-A: What happens if it is scrapped?
• Deletion of Article 370.
Intro...
 Article 370
Background & Provisions.
• 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:
 Why it was incorporated?
• Maulana Hasrat Mohani, asked in the
Constituent Assembly on October 17, 1949:
“Why this discrimination please?”
• Gopalaswami Ayyangar answers:
• Kashmir, unlike other princely states, was not
yet ripe for integration. India had been at war
with Pakistan over Jammu and Kashmir and
while there was a ceasefire, the conditions
were still “unusual and abnormal.” Part of the
State’s territory was in the hands of “rebels
and enemies.”
• “entanglement” - “Kashmir problem is
satisfactorily resolved.”
• “will of the people through the instrument of
the Constituent Assembly will determine
the Constitution of the State as well as the
sphere of Union jurisdiction over the State.”
 Nehru-Sheikh Talks.
What Delhi Agreement of 1952 is all
about.
• On issues of commerce, audit, judiciary,
elections and finance, there were
considerable modifications. India’s
fundamental rights and directive principles
were not applicable in Jammu and Kashmir at
all.
• Sheikh arrested.
• Renegotiation with Bakshi G Muhammad.
• Presidential Order of 1954.
 Article 35-A
‘Constitution (Application to Jammu
and Kashmir) Order, 1954’
• Jammu and Kashmir was the only State to
negotiate terms of its relationship with India.
Petition
• The J&K Study Centre says Article 35A is
unconstitutional because it was added by a
Presidential order, without the approval of
Parliament.
• Against the Basic Structure of the
Constitution.
• Violative of the rights of the Women.
Kashmir: The only ‘Special’ State in
India?
Asymmetric Federalism.
 371A
• This provision inserted in 1962 explicitly bars
the Parliament of India from making any law
in respect of “ownership and transfer of land”
in Nagaland and also “its resources”.
 371G
• No Act of Parliament in respect of
...ownership and transfer of land, shall apply
to the State of Mizoram unless the Legislative
Assembly of Mizoram by a resolution so
decides.
 Others...
• Assam, (Art. 371B), Manipur (Art. 371C),
Andhra Pradesh (Art. 371D), Sikkim (Art.
371F), Arunachal Pradesh (Art. 371H), and
Goa (Art. 371I).
• Himachal Pradesh.
• Most Recent: 371J.
 Global Picture...
• Britain has conferred “special status” with
substantial autonomy on Scotland and Wales,
not to forget Northern Ireland.
• Hong Kong – China: One Country, Two
Systems.
Article 35A
Reality.
 1.
• The media has largely gone along with this explanation,
often portraying the debate as a question of “special
status” of Jammu and Kashmir and the Article as some
sort of unusual concession to the State. In fact, the
fundamental purpose of Article 35A, when it was
introduced in 1954 as part of a Presidential Order,
was the exact opposite: instead of giving the state a
“special status”, it was designed to take autonomy
away from it.
 2.
• Article 356.
• For the first time, India’s fundamental rights and
directive principles were applicable to Jammu
and Kashmir and the State’s finances were
integrated with India.
• The Order also extended the Indian Supreme
Court’s jurisdiction over certain aspects of
Jammu and Kashmir.
 3.
• At the time of its introduction, the Order was
celebrated in India as a great step towards
bringing Jammu and Kashmir closer into the
Union of India. Even the Hindu right-wing leaders
had hailed it as a “commendable step”. No
eyebrows were raised over the minor issue of
Article 35A, which made up a very small
component of the Order.
 More than Bihar, less than Bhutan.
• It is because of this weak India-Kashmir constitutional
link that Sheikh Abdullah became “Prime Minister” of
Kashmir; the State had its own Constituent Assembly
and flag; there were customs checks between India and
the State; the Supreme Court did not have jurisdiction
over key issues in the State; Kashmir militia was
constituted as a separate force; and Srinagar tried to
send its own trade commissioners to foreign
countries.
 SC Verdicts...
• Prem Nath Kaul v. State of J&K (1959).
• Sampat Prakash v. State of J&K (1969).
• State Bank Of India vs Santosh Gupta (2016).
 1.
• The Supreme Court ruled that the President can
issue an Order under Article 370 only with the
concurrence of the state government.
• Article 370 of the Constitution has never ceased
to be operative and there can be no challenge on
this ground to the validity of the Orders passed
by the President in exercise of the powers
conferred by this Article.
 2.
• Presidential Order can “extend” or “enlarge”
the provisions of Indian Constitution in its
application to J&K.
A.G.Noorani Argument
 Violative of Basic Structure?
• Doctrine deals with Article 368.
Violative of Gender Rights?
 35A
What if it is scrapped?
Article 35A Petition
Political or Constitutional?
 Article 370
Can it be deleted?
35A & 370
Way Forward
 Pratap Bhanu Mehta
• Politics must fix what politics broke.
• We can neither endure the historical patchwork
we inherited, nor the means to go beyond it. The
first task of statesmanship is to throw cold water,
not fan the fires of polarisation.
• But it looks like Kashmir’s tragedy, oscillating
between a heavy-booted state, and a
destructive radicalism, will continue.