ARTICLE 370

HOW IT CAME INTO BEING?

 back then in 1947, India got independence but was divided, divided into 562 princely
states. Each one of them were given three options either to accede with India, Pakistan
or rule independently.
 Raja Hari Singh (then king of Jammu and Kashmir) chose neither to unite with India and
nor with Pakistan but to have his own independent state of rule. But was reluctant to
accede with Indian union when Pakistan tried to conquer Kashmir by force by sending
troops of tribesmen by the name of ‘Azad Kashmir Forces.’
 the reason put forward by Pakistan for this claim was that Kashmir’s 3/5th population
was Muslim dominated and that was not happy with the Indian Government.
 He signed the “Instrument of Accession’ on 26 October, 1947, declaring his decision of
uniting with India. Though Kashmir united India, Indian government was given only
powers to interfere in the matters of
 a. defense
 b. external affairs.
 C. communications
 Pakistan was still trying to establish his control over the land and people of Jammu and
Kashmir through attacks.
 Facing these attacks, the government of India decided to take this issue to the United
Nations.
 The United Nation sorted out this issue by drawing a ceasefire and declaring the need of
a plebiscite. It meant that let the people of Jammu and Kashmir decide whether they
have to be part of India or Pakistan.
 Now, as for keeping the public’s view point and till then what would be the relation
between India and j&k, India granted a constituent assembly to Kashmir, as to draft a
constitution for the public there and to define the relation between the union and the
state.
 It was all in 1948.
 Till the time this process was on go, a temporary provision was included in Indian
constitution, namely, article 370 which granted Jammu and Kashmir a special status
unlike other states.
 WHAT IS IT?
Article 370
 The provision was incorporated in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.
o As evident from the title of the Part, it was supposed to be a temporary provision and its applicability was projected
to last till the formulation and adoption of the State’s constitution.

1. Indian Parliament cannot make any law without the consent of state Assembly
2. Jammu Kashmir has its own flag and constitution
3. President rule cannot be proclaimed in that state Only Governor rule can be. Imposed
4. Jammu Kashmir has its own Criminal code as well.
5. Except for Defense, Foreign Affairs, Finance and Communications, the Indian Government needs the
State Government’s nod to apply all other laws.
6. The central govt. has no power to impose financial emergency in the state. Emergency can be imposed
only on the grounds of internal disturbances and imminent danger from a foreign enemy.
7. Therefore, the state government has the control on how it needs to govern the state without worrying
about the consent of the central government.
8. Due to this article, Indian nationals belonging to other states cannot buy land or property in the state of
J&K.

 Clause 1 of Article 370 provides that President, in concurrence with government of State (J&K) has
power to make certain orders.
 In pursuance of this provision, Article 35A has been added by Special Presidential order, “The
Constitution (Application to Jammu & Kashmir) Order, 1954”. It has not been voted upon by the
constituent assembly, and hence, it is not found in the text of Constitution of India.

Application of 370

 However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either
abrogation or amendment of Article 370, leaving the status of the provision on a cliffhanger.
 The provision was later held to have acquired permanent status by way of rulings of the Supreme Court of
India and the High Court of Jammu and Kashmir.
 This implied that to apply a central law to the state on subjects included in the Instrument of Accession, mere
“consultation” with the state government is required.
 However, to apply a central legislation to matters other than defense, foreign affairs and
communications,” concurrence” of the state government was mandatory.

Jammu and Kashmir Constitution

 Article 3-> Relationship of the State with the Union of India: - The State of Jammu and Kashmir is and shall be
an integral part of the Union of India.
 In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is a categorical
acknowledgement about the object of the J&K Constitution being “to further define the existing relationship of the
state with the Union of India as its integral part thereof.”
 Main Features of Article 35A

 Article 35A was added to constitution by a special order issued by President Rajendra Prasad, on
advice by Cabinet of Mr. Jawaharlal Nehru. It was neither discussed in Constitution Assembly nor in
Parliament.
 These rights are in consonance with Maharaja Hari Singh’s notifications of 1927 & 1932 defining state
subjects and their rights.

Background

 Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir states legislature to define
“permanent residents”.
 The provision mandates that no act of the state legislature coming under the ambit of Article 35A can be challenged
for violating the Indian Constitution or any other law of the land.

Who Are Permanent Residents?

 The rights are given in the state Constitution of Jammu and Kashmir.

 as a person who was a state subject on May 14, 1954

 who had been a resident of the state for 10 years
 has lawfully acquired immovable property in the state
 The state legislature can alter the definition of a permanent resident by passing a law with a two-thirds majority.
 Permanent residents are given a Permanent Resident Certificate which forms the basis of their rights in the state.
 It also has a provision to recognize as permanent residents, people who had migrated to Pakistan and returned,
though subject to certain conditions.

 Rights and Privileges

 Special Rights and Privileges are given in the following four categories:

 Employment under the state government/State Public Sector Jobs

 Acquisition of immovable property in the state
 Settlement in the state
 Right to scholarships and such other forms of aid as the state government may provide
 ABROGATION
Hurdles in removal:

 Clause 3 states that the President cease the operation of this article, if the Constituent Assembly of
J&K so recommends. The Constituent Assembly of J&K was constituted in 1956, which drafted a
separate constitution for J&K. with its work done, at present, no such constituent assembly exists.

How has the Government moved to remove Article 370 & 35A?

Under the same Clause (1) of Article 370, a Presidential order, “The Constitution (Application to
Jammu & Kashmir) Order, 2019” has been issued. I contain Two points, lets understand them one
by one:

Point 2: Point 2 of the Order has made some additions in Article 367 of the Constitution.

Article 367 provides for interpretation of the constitution. Clause 4 has been added to this Article.
Let’s look at the provisions one by one:

1. Article 367 (4)(a) It means that this provision being added is a part of that shadow self of the
constitution which is exclusively applicable to Jammu & Kashmir. Since the law being made or
changed is about Jammu & Kashmir, it does not require procedures as are required for other
constitutional amendment.

Did the State of J&K agree? Such order cannot be made without concurrence of the State of J&K.
Right now, J&K is under President’s Rule and the Legislative Assembly is not functional. We can
conclude that such concurrence was given by the Governor.

2. Article 367 (4)(b) It means that once 35A is removed, the term “Sadr e Riya sat” would come to mean
the Governor of the State, and not a President as was pre-Art. 35a arrangement.

3. Article 367 (4)(c): It’s another clarification for interpreting “Concurrence of Government of State” as
provided in Article 370? It is clarified that the Government of State would mean the Governor acting
on advice of Council of Ministers.

Since Center’s rule is applicable in J&K right now, there exists no Council of Ministers. Now, either
the council needs to be established through elections or article 370 can be amended to do away with
provision of “Concurrence of Government of State”

4. Article 367 (4)(d): The Constituent Assembly whose recommendation was required for scraping of
Art. 370 does not exists today. Therefore, this provision has been added to substitute “Constituent
Assembly” with “Legislative Assembly”.

Point 1: Point 1 of notification mentions that The Constitution (Application to Jammu & Kashmir)
Order, 2019 replaces The Constitution (Application to Jammu & Kashmir) Order, 1954
.It is noteworthy that Article 35A & the separate constitution for J&K was framed under the aegis of
The Constitution (Application to Jammu & Kashmir) Order, 1954. Now, that 1954 Order is gone, so is
Article 35A & the separate constitution of J&K.

Way ahead:

The Presidential Order of 2019 is just the first step with removal of Article 35A. There is a need for
recommendation by the State Legislative Assembly for removal of Article 370.

Complete removal of Article would curtail Center’s power only to the areas of Defense, External
Affairs & Communications. Therefore, clause 1, which provides for power of the Union government to
administer various aspect, needs to be preserved. For that matter, it is being proposed to repeal all
provisions of article 370 except clause 1.

Removal of J&K Constitution has brought the state under provisions of Article 1&2 and therefore, the
center now has powers to change its boundaries.
In regards with that, Jammu Kashmir Reorganization Bill, 2019 has been presented in the Rajya
Sabha. It proposes to divide the state in 3 Union territories viz. Jammu, Kashmir & Ladakh.

Advantages of Article 370

1. Better relationship with Indians and Kashmir Population

2. One Nation and One Flag

3. Boost to Economic Development

4. Private Investors can Invest

5. Right to Education and Information

Disadvantages of Article 370

1. Only a small portion of Kashmir believes it to be unlawful. This decision has been equated to fascism

2. Many proclaim it as unconstitutional; it was comparable to a dictatorship

3. J&K no longer has the status of a state; instead, it is now considered to be union territory

4. Not all choices can be made by the elected state government

 ICONIC PROJECTS
After abrogation of article 370 a lot of development took in Jammu and Kashmir they are as follows:

s.no project cost details

1 Kwar HEP 4526.12 1.All clearances/ exemptions in place.
(540 MW) crore 2.Technical evaluation of bids received for Civil completed and price bids opened
are under evaluation.
3.Technical evaluation of HM Package and E&M package is also under progress.
2 Shahpur 2793.00 Creation of Irrigation Potential-53927 ha
Kandi crore 470 MU pa of electricity on low cost to J&K
3 Ujh MPP 9167.00 Sanction Awaited.
(40,716 Ha) crore Irrigation Potential-76929 ha
BCR-0.66
Power Generation-196 MW
All 15 NoCs required from UT Departments/Central Ministries received.
EFC Memo submitted by MoWR, RD & GR returned back for consideration of
improvement
in BCR from 0.66 to 1.00 or more.

Revised/Redesigned DPR:
CWC finalized revised DPR/design of the Project.
Rev. Cost- 11908.00 crore
Rev. BCR- 0.79
Rev. Irrigation potential-91073 ha
Rev. Power Gen.-89.50 MW
Total 16,486.12
cost crore

project cost

Kwar HEP Shahpur kandi Ujh MPP