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UPSC : ARTICLE 370 AND 35 A NOTES : APJSIR

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Jammu and Kashmir : APJSIR

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Friends, Both Article 370 and Article 35A have been subject matters of debates for several
years. They've been continuously challenged in the Supreme Court on grounds of being
unconstitutional and violating the basic structure of the Indian Constitution. The debate has
once again gained ground with National Conference leader and former J&K CM Omar
Abdullah calling for a separate PM for J&K.

➔ History of J&K :::

● The first formal document of Kashmir came out through Kalhana’s Rajatarangini. Both
Hindus and Muslims had ruled Kashmir from time to time before independence. During
Ranjit Singh’s rule, even Sikhs also governed this area.

● In 1822, Gulab Singh became the King. Ranbir Singh came to power after the death of
Gulab Singh in 1857.

● Hari Singh took charge of state in 1925. He was the king of Kashmir when the treaty was
signed with India.

➔ Accession of J&K to India ::::

● Jammu and Kashmir was one among the 565 princely states of India on which the British
paramountcy lapsed at the stroke of midnight on 15th August 1947 under the Partition Plan
provided by the Indian Independence Act.

● The rulers of princely states were given an option to join either India or Pakistan. The ruler
of Kashmir Maharaja Hari Singh did not exercise the option immediately. He instead
offered a proposal of standstill agreement to both India and Pakistan, pending a final
decision on the state’s accession.

● Pakistan entered into the standstill agreement but it invaded the Kashmir from north with
an army of soldiers and tribesmen carrying modern weapons. In the early hours of 24th
October, 1947, thousands of tribal pathan swept into Kashmir.

● The Maharaja of Jammu and Kashmir appealed to India for help. He sent his representative
Sheikh Abdullah to Delhi to ask for India’s help.

● On 26th October 1947, Maharaja Hari Singh fled from Srinagar and arrived in Jammu
where he signed an 'Instrument of Accession' of J&K state.
● According to the terms of the document, the Indian Jurisdiction would extend to external
affairs, communications and defence. After the document was signed, Indian troops were
airlifted into the state and fought alongside the Kashmiris.

● On 5th March, 1948, Maharaja Hari Singh announced the formation of an interim popular
government with Sheikh Mohammed Abdullah as the Prime Minister.

● Subsequently, the Maharaja signed a proclamation making yuvraj Karan Singh as Regent.

➔ Delhi Agreement :::

● In 1951, the state constituent assembly was elected. It met for the first time in Srinagar on
31st October 1951.

● In 1952, The Delhi Agreement was signed between Prime Ministers of India and Jammu &
Kashmir giving special position to the state under Indian Constitutional framework.

● On 6th february 1954, the J&K constituent assembly ratified the accession of the state to
the Union of India.

● The President subsequently issued the constitution order under Article 370 of the
Constitution extending the Union Constitution to the state with some exceptions and
modifications.

➔ J&K Constitution :::

● The state’s own constitution came into force on 26th January, 1957 under which elections
to the state legislative assembly were held for the first time. This constitution also ratified
the state’s accession to the Union of India.

● Section 3 of the constitution says Jammu & Kashmir is and shall be an integral part of the
Union of India.

★ Article 370 :::::

● The provision of Article 370 was drafted by Sheikh Abdullah.

● In the Indian Constitution, it was included as a temporary provision that grants special
status to J&K.

● All the provisions of the Constitution which are applicable to other states are not applicable
to J&K except for defence, foreign affairs, finance and communications.

● Parliament needs the state government’s concurrence for applying all other laws.

● The state's residents live under a separate set of laws, including those related to citizenship
and ownership of the property.

● It gives J&K a unique power to have a separate Prime Minister, President, flag and
constitution.
● Due to special provisions attached to this article, it always remains debatable. Those who
are against it argue that it hampers integration process of J&K with the rest of the country.

★ Article 35A :::

● It came into existence through a Presidential Order in 1954 and it gives the J&K assembly
the right to decide the definition of Permanent residents of the state and prevent the people
of the other states from buying real estate in J&K.

According to the constitution of J&K, a permanent resident is defined as a person who was
a state subject on 14th May, 1954 or who has been residing in the state for a period of 10
years and has lawfully acquired immovable property in the state or migrated from the state
after 1st March, 1947 and has gone within the present Pakistani border area but has
comeback with resettlement permit in the state.

● Under this, a citizen of any other state can neither buy property in J&K nor can they
become a permanent resident of the state.

● The presidential order provided that only the original residents of J&K will have right to
scholarships, services, land and settlement.

● It stated that if a girl who is a citizen of J&K marries an outsider then she will lose her right
to ownership of property. In 2002, the J&K High Court issued an order stating that in such
cases, a girl’s right will continue for life.

● It gives special powers to J&K as a state i.e. the state government has the right to give and
abstain privileges to people who migrated there during independence and other Indian
nationals in J&K.

● Some experts argue that spirit of Article 35A flows from Article 370 while some others
argue that it is not constitutional as it came through a presidential order.

➔ J&K after Accession ::::

● Kashmir at the time of accession got divided into two parts: one part came to India and the
other one was occupied by Pakistan. Despite UN’s contravention, there has been no
reconciliation between India and Pakistan over Kashmir.

● Refugees from Western Pakistan (1947) are still deprived of the fundamental rights and
identity in the state. Such people can vote in Lok Sabha elections but can’t vote in local
bodies and assembly elections.

● In 1957, about 200 families of the Valmiki Community were brought from Punjab to J&K
as Safai Karamcharis. They have been given conditional state subject rights i.e. they can
own property but cannot take up any other job.

● When anti-India protests intensified in 1988, the valley faced curfew many times.
 ● In 1989, Pakistan helped in providing weapons to the militants and the terror reached its
peak.

Political Instability had reached at such a level that the then Chief Minister Farooq
Abdullah had to resign.

● In January 1990 after the death of nearly a hundred people in military firing, there was a
rapid increase in militant activities.

Violence spread throughout the valley.

Srinagar’s Doordarshan was attacked and its director was killed and then the attacks against
the Kashmiri Hindu community also started.

Due to the attacks, such people left their homes and fled to relief camps. After that, they
settled in Delhi or anywhere they found the place. They have been demanding for their
rehabilitation for a long time.

Experts say that people would have not got displaced if the administration would have
taken the strict action then.

● Many steps have been taken for maintaining peace in the state; but political instability,
separatism and Pakistan-sponsored terrorism continue to surround the state of J&K.
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REVISION

Article 370
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Since the BJP and PDP alliance broke in Jammu and Kashmir, there have been debates on
whether Article 370 which grants special status to the state, should be revoked or not. The
promise when it was formulated that Article 370 was a temporary provision and will get
eroded over a period of time has turned out to be an illusion. Article 370, included in the
Constitution on a temporary provision should have been gradually abrogated. This has not
happened in nearly 70 years.

➔ Background ::::

● Article 370 of the Indian Constitution deals with the special status given to the state of
Jammu & Kashmir.

● It was supposed to be an interim arrangement until final resolution of the issues of Kashmir
is achieved by engaging all the stakeholders.

● The article has undergone a fair amount of changes and it does not come into the way of the
jurisdiction of the Indian parliament it did in its original form.
 ● It provides a degree of autonomy to the state and permits the state to give some special
privileges to its "permanent residents".

● Some of the major implications of this can be listed as:

1. The Emergency provisions are not applicable to the state on the grounds of “internal
disturbance” without the concurrence of the State.

2. The name and boundaries of the State cannot be altered without the consent of its
legislature.

3. The state has its own constitution, a separate flag and a separate penal code (Ranbir Penal
Code).

4. Duration of the state's Assembly is six years, unlike five in the rest of India.

5. The Indian Parliament can pass laws regarding J&K in the matters of Defense, External
affairs and communication only. Any other law formed by Union will only be applicable in
J&K by presidential order if it concurs with state assembly.

6. The President may, by public notification, declare that this Article shall cease to be
operative but only on the recommendation of the Constituent Assembly of the State.
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Article 35A
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● Article 35A, which is an extension of article 370 that empowers the Jammu and Kashmir
state's legislature to define “permanent residents” of the state and provide special rights and
privileges to those permanent residents and doesn’t allow residents from other states to
work or own property in the state.

● The intention behind this article was to protect the demographic structure of J&K. In spite
of the fact that the people from the Hindu and Buddhist majority Jammu and Ladakh are
permitted to reside in Kashmir, its demographic structure has remained more or less the
same.

● The constitutionality of Article 35A have been debated on the ground that it was not added
via an amendment procedure. However, similar provisions were used to extend special
rights to other states as well. In this scenario, it is difficult to abrogate this act.

➔ Objections to the Article :::

● The article circumcises the power of the Indian parliament to make laws for one of its
states.

● This article has not been added to the constitution as per the amendment procedure laid
down in Article 368. Instead, it was inserted in the constitution by a presidential order.
 ● This Article also violates some fundamental rights of women who marry outside the state,
manual scavenging workers, West Pakistani refugees etc.

● It is also criticized for allowing the state government and to discriminate between citizens
of India, on an unfair basis.

➔ Issues in Revoking 370 and 35A ::::

● Currently, the right of permanent settlement is perceived as the only significant autonomy
held by Kashmiris. So any attempt to tamper it might attract a massive backlash.

● If the article 35A is repealed, constitutionally, J&K will return to its status as before the
1954 act. In that case, the union government will be left with powers related to defence,
foreign affairs and communications within the state.

● It has also been argued that many of the autonomies granted by Article 370 have been
eroded anyway and most of the laws of the union apply to the state of J&K as well. What
needs to be done?

● Article 370 cannot be revoked unilaterally. It is important that Jammu and Kashmir and the
Centre arrive at a consensus regarding. This can be done by promoting cooperative
federalism and building confidence.

● The youth of Kashmir, in particular and the people in general, have to be convinced of the
fact that Kashmir is an integral part of India by making them a part of the economic
progress of the country.

● The law and order situation in the state needs to be dealt with and peace should be restored
so that talks regarding 370 can be initiated in an amicable environment.

● The hate-mongering by the means of social media and fake news need to be curbed
campaigns for peace should be carried out so that the people of India feel more acceptance
for the people of Kashmir.

● The State government should also adopt the way of Consensus Democracy. It is important
that the decision making structures involve and take into account a broad range of options
as opposed to systems where minority opinions can potentially be ignored by vote-winning
majorities.
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REVISION

Article 35A
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➔ Why in News...?
● A bunch of petitions have challenged Article 35A which confers the special status to the
permanent residents of Jammu and Kashmir (J&K).

● The Supreme Court (SC) has adjourned the case and postponed the hearing till January
2019.

➔ What is 35A...?

● Article 35A was added to the Indian Constitution by a Presidential order in 1954 – issued
under Article 370 of the Constitution.

● This provision allows the President to make certain “exceptions and modifications” to the
Constitution for the benefit of ‘State subjects’ of J&K.

● While Article 370 of the Constitution grants special status to J&K, Article 35A provides
the special rights and privileges to the permanent residents of J&K.

● The Fundamental Right to Property is still guaranteed in the state. Also, certain special
rights are granted to the permanent residents of the state with regard to public employment,
acquisition of immovable property, settlement and government scholarships.

● It disallows people from outside the state from buying or owning immovable property
there, settle permanently, or avail themselves of state-sponsored scholarship schemes.

● Only the Jammu-Kashmir assembly can change the definition of Permanent Residents
through a law ratified by a two-thirds majority.

➔ Controversy ::::

● Many believe that this article was incorporated unconstitutionally, dodging Article 368
which emancipates only the Parliament to amend the constitution.

● Others consider Article 35 A against the “very spirit of oneness of India” as it created a
“class within a class of Indian citizens” - by treating non-permanent residents of J&K as
‘second class’ citizens.

● Restricting citizens from other States from getting employment or buying property within
J&K is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

● There is also probable discrimination on the basis of gender – since it denies property rights
to children of women who marry those from outside the state.

➔ Arguments in support of 35A :::

● Article 35A safeguards the uniqueness of the J&K. Even Himachal Pradesh and
Uttarakhand have the laws which state no outsider can buy land.

● This was part of the deal struck between the Maharaja of Kashmir, Hari Singh, and the
republic of India to protect the privileges of Kashmiri residents from outsiders.
 ● Striking Article 35A down will have various consequences on other constitutional
amendments contained in the 1954 Presidential Order. And this can erode the autonomy of
J&K.

● Striking down Article 35A would allow people from outside J&K to settle in the state and
acquire land and property, and the right to vote, thus altering the demography of the state.

➔ Way Forward :::

● The matter is sensitive and requires participation of various stakeholders and requires a
larger debate.

● This issue requires separate constitutional bench to take a stand about the article.

● Though article 35A need relook, any further alteration should not take away the uniqueness
of J&K.

● Should Article 35A be removed, it must be removed as an expression of the will of the
people, through a political process which includes the people of J&K in the discussion.
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AND REVOKED ::: APJSIR

Article 370 and 35(A) Revoked

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On 5th of August 2019, the President of India promulgated the Constitution (Application to
Jammu and Kashmir) Order, 2019.

● The order effectively abrogates the special status accorded to Jammu and Kashmir under
the provision of Article 370 - whereby provisions of the Constitution which were
applicable to other states were not applicable to Jammu and Kashmir (J&K).

● According to the Order, provisions of the Indian Constitution are now applicable in the
State.

● This Order comes into force “at once”, and shall “supersede the Constitution (Application
to Jammu and Kashmir) Order, 1954.”

● A separate Bill - the Jammu and Kashmir Reorganisation Bill 2019 - was introduced to
bifurcate the State into two separate union territories of Jammu and Kashmir (with
legislature), and Ladakh (without legislature).

● Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 was also introduced to
extend the reservation forEconomically Weaker Sections (EWS) in educational institutions
and government jobs in Jammu and Kashmir.
➔ History ::::

● J&K acceded to the Dominion of India after the Instrument of Accession was signed by
Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir, on 26 October
1947.

● Article 370 of the Indian Constitution provided that only Articles 1 and 370 itself would
apply to J&K. The application of other Articles was to be determined by the President in
consultation with the government of the state.

● The Constitution Order of 1950 specified the matters on which the Union Parliament would
be competent to make laws for J&K, in concurrence with the Instrument of Accession - 38
Subjects from the Union List were added.

● The Constitution (Application to Jammu + Kashmir) Order, 1954 settled the constitutional
relationship of J&K and the Union of India. It made the following provisions ::::

1. Indian citizenship and all related benefits (fundamental rights) were extended to the
'permanent residents' of Jammu and Kashmir.

2. Article 35A was added to the Constitution (empowering the state legislature to legislate on
the privileges of permanent residents with regard to immovable property, settlement in the
state and employment)

3. The jurisdiction of the Supreme Court of India was extended to the State.

4. Central Government was given the power to declare a national emergency in the event of
external aggression. The power in case of internal disturbances could be exercised only
with the concurrence of the State Government.
5. Normalized the financial relations between the Centre and J&K

➔ Article 370 - Features and Provisions ::::

● Present in part XXI of the Indian Constitution which comprises of Temporary, Transitional
and Special Provisions with rest to various states of India.

● Forms the basis of the “Special Status” of J&K.

● Provides for a separate Constitution of J&K.

● Limits the Union Parliament’s power to make laws for J&K to those subjects mentioned in
the Instrument of Accession (defense, foreign affairs, and communications) and others as
and when declared by the Presidential Orders with the concurrence of the Government of
the State.

● Specified the mechanism by which the Article shall cease to be operative. That is, on the
recommendation of the Constituent Assembly of the State before the President issues such
a notification. However, this provision has been amended by the Constitution (Application
to Jammu and Kashmir) Order, 2019.

➔ Was it Temporary ::::

● The Article was introduced to accommodate the apprehensions of Maharaja Hari Singh
who would not have acceded to India without certain concessions.

● Territorial integrity was of paramount importance to India post-independence, thus, such a

special provision was inducted in the constitution.

● The provision, however, is part of the “Temporary, Transitional and Special Provisions” of
our constitution.

● Moreover, Article 370 could be interpreted as temporary in the sense that the J&K
Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.

● Another interpretation was that accession was temporary until a plebiscite.

➔ Issues in Revoking :::

● Article 370 is the bedrock of the constitutional relationship between Jammu and Kashmir
and the rest of India.

● It has been described as a tunnel through which the Constitution is applied to J&K.

● India has used Article 370 at least 45 times to extend provisions of the Indian Constitution
to J&K. This is the only way through which, by mere Presidential Orders, India has almost
nullified the effect of J&K’s special status.

● By the 1954 order, almost the entire Constitution was extended to J&K including most
Constitutional amendments.
 ● However, abrogating the article altogether may threaten the peace in the state which is
already a hotspot of conflicts and militancy.

● It will completely change the relationship between the state and the rest of India.

● It will also clear the path for abrogating Article 35A which would allow Indian citizens to
purchase land and settle permanently in J&K.

● Thus, the move is bound to have a significant impact on the demography, culture, and
politics of J&K.
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What will happen to J&K now : THE ECONOMICTIMES

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● After Kashmir's special status is gone, people from anywhere in India be able to buy
property and permanently settle in the state. This has fuelled fear in the mind of Kashmiris
— they think it would lead to the state's demographic transformation from majority Muslim
to majority Hindu.

● A separate Union Territory will be created for Jammu & Kashmir with legislature, Amit
Shah has revealed via a notification. "Keeping in view the prevailing internal security
situation, fuelled by cross-border terrorism in the existing state of Jammu & Kashmir, a
seperate Union Territory is being created", the notification said.

● Under the notification, the Ladakh region is also being given the status of a Union
Territory, without legislature. "The Ladakh division has a large area but is sparsely
populated with a very difficult terrain. There has been a long-pending demand of the people
of Ladakh to give it a Union Territory status to enable them to realise their aspirations,`` it
said.

● Following Amit Shah's proposal, President Ram Nath Kovind promulgated Constitution
(Application to Jammu and Kashmir) Order, 2019, stating that the provisions of the Indian
Constitution will henceforth be applicable to J&K.

● The Constitution (Application to Jammu and Kashmir) Order, 2019 comes into force "at
once", and shall "supersede the Constitution (Application to Jammu and Kashmir) Order,
1954".

● The presidential promulgation says: "All the provisions of the Constitution shall apply in
relation to the state of Jammu and Kashmir."

● For the purpose, a clause 4 has been added to Article 367 which will introduced four
changes.

● "The references to the person for the time being recognised by the president on the
recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat of Jammu
 and Kashmir, acting on the advice of the Council of Ministers of the state for the time being
in office, shall be construed as references to the Governor of Jammu and Kashmir,'' said the
order.

● It added: "References to the Governor of Jammu and Kashmir shall be construed as

including references to the Governor of Jammu and Kashmir acting on the advice of his
Council of Ministers".

● The order further said that in the proviso to clause (3) of Article 370, the expression
"Constituent Assembly of the State referred to in clause (2)" shall read "Legislative
Assembly of the State".
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Article 35A scrapped: Can outsiders now invest in J&K real estate..?

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● The Narendra Modi government on Monday scrapped Article 370 and Article 35A of the
Indian Constitution which gave “special status" to the state of Jammu and Kashmir (J&K).
After the announcement, the state has now been bifurcated into two union territories. Now
that Article 35A has been revoked (a law that debarred non-residents from buying
properties), will it open doors for non-Kashmiris and outsiders to invest in immovable
property within the union territory?

● Article 35A gave J&K government the right to decide who qualifies as a permanent
resident of the state and only these individuals were allowed to acquire or own land, settle
and seek government jobs in J&K region. This means non-Kashmiris and the rest of the
country did not have the right to invest or buy immovable property or even settle down in
the state. However, revoking Article 35A would most likely open gates for real estate
investments in J&K from across the country. “It is too early to predict the real impact of
abolishing Article 35A on Kashmir’s real estate market. It is a highly sensitive region and it
will take a long time for all the ambiguities to clear up. The fact that the region has been an
area of contention for decades will keep any parties interested in investing there in
wait-and-watch mode. Much depends on how the political scenario there unfolds," said the
chairman of a leading property consultancy firm who did not want to be named.

● Experts said that the real estate activity has been very limited in the J&K region since the
state has always been in a vulnerable situation due to conflicts between India and Pakistan.
Until now, non-residents were not allowed to purchase property and hence, investors never
gave it a second thought. “Even with the scrapping of Article 370, this region will remain
politically contentious for quite a while, and this fact will keep any investment sentiment in
abeyance until much more clarity and certainty emerges," said the chairman quoted above.

● Shubhranshu Pani, managing director-retail services at JLL India said, “We have shopping
centres in Jammu and what we’ve seen is, as soon as there is a spark of any violence or
 disturbance, it is the shopping centres that are shut first. After this move (revoking Article
35A), Jammu will hopefully get a fresher life but I am not very sure about Kashmir."

● Pani said that there are enough people in the state who’ve been very cautious about
investing in real estate because the militancy and the political scenario are not very
favourable. “Before the outsiders, I think it will be the residents of the state who would like
to take advantage first and will perhaps not be afraid of investing anymore," said Pani.

● Experts we spoke to also said that it would take some time for investors to gain confidence
in J&K. For now, only those people who are okay with taking risks and see potential in the
region will take the plunge. “I think it will start off with developers typing up with
established local players to build the ecosystem. This is how most cities and states grow. I
see it as a great opportunity for localites first," said Pani.
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Ankushjadhavsir’s Officers Academy

UPSC : ARTICLE 370 AND 35 A NOTES : APJSIR

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