ARTICLE 370 AND 35(A) (By- Shreya Jha)
ARTICLE 370 AND 35(A)
Authored By- Shreya Jha
DELHI METROPOLITIAN EDUCATION AFFILIATED TO GURU
GOBIND SINGH INDRAPRASTHA UNIVERSITY
DELHI, INDIA
Abstract
Article 370 was drafted in the Part
XXI of the Indian Constitution, titled "Temporary, Transitional and Special
Provisions", which provided Jammu & Kashmir a special constitutional
status in India. It therefore stated that the Constituent
Assembly of Jammu and Kashmir would
be empowered to recommend the extent to which the Indian constitution would
apply to the state. It also restricted any Parliamentary legislation`s powers
to rule on Jammu & Kashmir as Article 370 exempts Jammu & Kashmir from
the Indian Constitution and permits the state to draft its own flag and
constitution and therefore, citizens of Jammu & Kashmir lived under the
different set of rules. On 27th October,1947, an instrument of
accession was signed between the Maharaja Hari Singh and India thereof, which
gives Parliament of India to interfere in the matters of Defence, External
Affairs and Communication only. According to Article 35(A) of the Indian
Constitution the special rights and privileges were given to the citizens of
the state. As a result, it gives authority to the state to decide that who is
the permanent citizen of the state and as per the Article 35(A) privileges were
given to the permanent member of Jammu & Kashmir i.e. employment with the
state government of Jammu & Kashmir, acquisition of the property in the
state, settling in the state and Right to scholarships and other benefits that
were given by the state government. A presidential order was issued by the
Government of India on 5th August,2019 that all the provisions was implemented
on the state i.e. Jammu & Kashmir and therefore order was passed by both
the houses of the Indian Parliament with the 2/3majority. As a result, on 6th
August 2019 all the clauses of Article 370 of the Indian Constitution except
one was suspended and therefore made inoperative.
Keywords: Article 370, Instrument of accession,
Article 35(A), Presidential order.
Introduction
Article 370 Of
Constitution of India provided the State of Jammu and Kashmir (J&K) special
constitutional status. The provision substantially limited Parliament’s power
to legislate for the State in comparison to other states.[1]Article
370 was drafted in Part
XXI of the Indian Constitution
titled "Temporary, Transitional and Special Provisions” and providedthe state that the Constituent
Assembly of Jammu and Kashmir would
be empowered to recommend the extent to which the Indian constitution would
apply to the state.
Article
370 was incorporated in the Constitution Of India on 17th October ,
1949. It says that only two Articles would apply in Jammu and Kashmir i.e.
Article 1 and Article 370. Also Article 1 states that Jammu and Kashmir is a
part of India. The Article can be endorsed with the permission of Constituent
Assembly of Jammu and Kashmir, Article 370grants an autonomous status to
J&K, while Article 35A, incorporated into the Constitution in 1954,
provides special rights and privileges to the citizens of the state.[2]
What
Is Article 370?
It
restricts Parliamentary legislation`s powers to rule on Jammu & Kashmir as
Article 370 exempts Jammu & Kashmir from the Indian Constitution and
permits the state to draft it`s own constitution. For the extension of central
law which are the elements of Instrument of Accession, mere
consultation of the state government is needed. But, for the extending it
to other matters, concurrence of the state government is
needed.
Provisions
Of Article 370
The
Parliament hereby needs the permission of Jammu & Kashmir government for
applying any laws in the state except Defence, Foreign Affairs, Finance and
communications.
The
law of citizenship, ownership of property and the fundamental rights of the
residents of Jammu & Kashmir is different from the people of rest of the
India. No power was given to the central government to declare financial
emergency in the state i.e. Jammu & Kashmir.
What
Is Article 35(A)?
Article
35(A) gives authority to the state to decide that who is the permanent citizen
of the state i.e. Jammu & Kashmir are. Some privileges were given to the
permanent member of Jammu & Kashmir i.e. employment with the state
government of Jammu & Kashmir, acquisition of the property in the state,
settling in the state and Right to scholarships and other benefits that were
given by the state government.
The
state government can impose any restrictions on the person who is not a
permanent resident of the Jammu & Kashmir regarding the above. The powers
of Supreme Court of India and Election Commission of India have limited power
on the state.
Historical Aspects
The
Indian Independence Act, 1947, divided British India, i.e., the territories
under the direct administration of the British, into India and Pakistan.
However, India and Pakistan gained their Independence on 15th August
and 14th August 1947, respectively, the 580-odd princely states that
had signed subsidiary alliances with the British had their sovereignty restored
to them, and were given the options of remaining independent, or joining the
Dominion of India/Pakistan. Under the Section 6(a) of The India Independence Act
joining either India or Pakistan would have to be through an Instrument of
Accession. States could specify the terms on which they were joining one of the
new dominions.
However,
Jammu and Kashmir choose to remain independent. There was an agreement
betweenPakistan, Indiaand J&Kthat none of them will attack on J&K.
While India respected the agreement and exercised restraint, On 6thOctober
1947, Kashmir was attacked by “Azad Kashmir Forces” supported by Pakistanin a
bid to annex it by force.
Instrument
Of Accession
Technically,
The Instrument of Accession was like a treaty between two sovereign countries
that had decided to work together.
To
save J&K, Maharaja Hari Singh (The ruler of Jammu and Kashmir) choose to
accede J&K to India.Maharaja Hari Singh signed the Instrument Of Accession,
and gave Parliament the power to legislate in Jammu and Kashmir only in the
matter of Defence, External Affairs and
Communications.
ARTICLE
370
The
Article was included in the Constitution on 17th October, 1949. Article
370 was drafted in Part XXI of
the Indian constitution titled "Temporary, Transitional and Special
Provisions. The Article 370includes that thecitizens ofJammu and Kashmir
have dual citizenship. The time period for J&K legislative assembly is 6
years. It allows Jammu and Kashmir to establish a separate constitution anda
separate flag. Under this, Citizens from other states can`t buy any property in
Jammu & Kashmir. Thereby, under this article the centre has no power to
declare a financial emergency in the state.
Constitutional And Legal Status: Kashmir Prior To The Revocaton Of
Article 370 And 35(A)
Article 370 of the Indian
Constitution is named as temporary provision, which allows Jammu & Kashmir
(state) a special constitutional status within the Union of India. According to
Article 370(1)(b), the Parliament of the India can only make rules for the
state with the consultation of the “State Government”, matters such as Defence,
Foreign Affairs and Communications are only included.
Therefore, the Jammu &
Kashmir constituted his own constitution and flag, which was officially adopted
by constituent assembly on November 17th, 1956 and came into force
on January 26th, 1959. Article 370(1)(d) says that other constitutional provisions
may be applied to the state from time to time, “subject to such modifications
or exceptions” made by the president of India, also through a presidential
order, as long as they do not fall within the matters referred to above and
except with the concurrence of the state government.
Jammu And Kashmir Reorganization Bill, 2019
The
Bill provides the reorganisation of the state of Jammu and Kashmir into “The
Union Territory of Jammu and Kashmir” and “The Union Territory of Ladakh”.The
Bill reorganises the state of Jammu and Kashmir into:
(i) The
Union Territory of Jammu and Kashmir with a legislature
(ii)
The Union Territory of Ladakh without a legislature.
The
Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union
Territory of Jammu and Kashmir will comprise the remaining territories of the
existing state of Jammu and Kashmir. The Union Territory of Jammu and Kashmir
administered by the President, through an administrator appointed by him known
as the Lieutenant Governor. The Union Territory of Ladakh will be administered
by the President, through a Lieutenant Governor appointed by him.
The
Bill provides for a Legislative Assembly for the Union Territory of Jammu and
Kashmir. The total number of seats in the Assembly will be 107. Of these, 24
seats will remain vacant on account of certain areas of Jammu and Kashmir being
under the occupation of Pakistan. Further, seats will be reserved in the
Assembly for Scheduled Castes and Scheduled Tribes in proportion to their
population in the Union Territory of Jammu and Kashmir. In addition, the
Lieutenant Governor may nominate two members to the Legislative Assembly to
give representation to women, if they are not adequately represented. The
Assembly will have a term of five years, and the Lieutenant Governor must
summon the Assembly at least once in six months.
The Legislative
Assembly may make laws for any part of the Union Territory of Jammu and Kashmir
related to:
(i)
Any matters specified in the State List of the Constitution, except “Police”
and “PublicOrder” .
(ii) any matter in the Concurrent List applicable to Union
Territories.
Further,
Parliament will have the power to make laws in relation to any matter for the
Union Territory of Jammu and Kashmir.
On 5th
August, 2019, The Jammu and Kashmir Reorganisation bill was introduced in Rajya
Sabha by the minister of Home Affairs Mr. Amit Shah, it was passed by Rajya
Sabha and was introduce in Lok Sabha 6th August, 2019.
Contentionsrelated Todemand For
Abrogation
Both
the parties who are in favour or in opposite of abrogation had valid arguments.
Contentions that are
in favour of the abrogation of bill are as follows-
The
issued created psychological barriers as they say that Article 370 of the
Indian Constitution is the main root of all these problems. Afterwards, they
stated that Article 370 encourages the secessionist activities within Jammu
& Kashmir and other parts of the country.They stated that at the time of
enactment, it was a temporary arrangement which therefore, need to be erode
gradually.
Contentions of the
members in against of the abrogation are as follows-
It
will encourage the secessionists to demand plebiscite which will lead to
internationalisation of the issue of J& K. They further argue that the
contention of Article giving rise to the secessionist activities is baseless as
Punjab, Assam, which don`t have any special status have experienced such
problems. It would not only constitute a solemnly undertaking given by India
through the instrument of succession, but would also give unnecessary misgivings
in the minds of the people of J & K, making the issue more sensitive.
High Court
Of Jammu & Kashmir
There will be the same
high court for both of the union territories i.e. Union Territory of Ladakh and
Union Territory of Jammu & Kashmir. Furthermore, The Union Territory of
Jammu & Kashmir will have an Advocate General to provide the legal advice
to the government of Union Territories.
Different Countries Response
o
PAKISTAN`S REACTION
The Foreign office of
Pakistan issued a revocation against India, which states that the step to
remove Article 370 is all illegal and a “unilateral step”after 6th
August 2019 and also the Prime Minister of Pakistan compared India with the
Nazis on 11th August, 2019. As Army chief of Pakistan state that the
army of Pakistan will go to any extent to help the people in Kashmir. Also, all
the type of cultural exchanges between the two countries were suspended, which
includes banning of Films and Dramas of India in Pakistan.
o
CHINA`S REACTION
The Foreign minister of
China states “it undermined China's territorial sovereignty, and India`s
action is unacceptable and would have any legal effect”. Also the Foreign
minister of China meets the Foreign minister of Pakistan and afterwards stated
that “seriously concerned about the turbulence and
escalating tensions in Kashmir and China will firmly continue to support
Pakistan in safeguarding his illegitimate rights”.
o
AUSTRALIA`S REACTION
Harinder Sidhu, the
Australian High Commissioner “ the India stated this thing in an internal
meeting and Australia respected the decision of India and wants that both the
countries Pakistan and India can resolve bilaterally.
o
CANADA`S REACTION
The
Foreign Minister, Chrystia Freeland stated that “Canada
is concerned about the risk of escalation, on civil rights and reports of
detentions.”
HUNGARY`S REACTION
The
government of Hungary, Fidesz supported India and Citizenship Amendment Act
Protest.
KUWAIT`S REACTION
In a National Assembly
Session, a Kuwait groups of lawmakers expressed their concern regarding “abusive
legislative and repressive security measures” taken by the Government of India.
USA`S REACTION
Morgan Ortagus, a US State
Department spokesperson stated there had been
no change in the US position with Kashmir continuing to be regarded as a
disputed region despite India's characterization of it as an "internal
matter" and stressed the need for bilateral talks between India and
Pakistan, and further stated "We are concerned about reports of detentions
and urge respect for individual rights and discussion with those in affected
communities."[239] When
asked by reporters if there had been any change in America's policy on Kashmir,
State Department spokesperson Morgan Ortagus replied "No. And if there
was, I certainly wouldn't be announcing it here, but no, there's not". The
US policy has been that Kashmir is a bilateral issue between India and Pakistan
and it is up to the two countries to decide on the pace and scope of the talks
on the issue.[240][241] During
prime minister Imran Khan's visit to the United States in July 2019, President Donald Trump offered
to mediate Kashmir conflict between Pakistan and India.[242] The Bureau of
South and Central Asian Affairs of
the US State Department in a statement said "the Indian government did not
consult or inform the US Government before moving to revoke Jammu and Kashmir's
special constitutional status".[243] US
President Donald Trump spoke to both Indian and Pakistani Prime Ministers. He
emphasised the need to reduce tensions and moderate rhetoric while speaking to
the Pakistani PM, after speaking to the Indian PM on 19 August 2019 On 21
August 2019, US President Trump offered to mediate the "explosive"
situation in Kashmir, adding that he will meet Prime Minister Narendra Modi at
the 45th G7 summit, which was held on 24–26 August 2019. Many Indian American communities
welcomed the Indian decision.[4]
RUSSIA`S REACTION
Russia has called upon both India and Pakistan to save the
situation in Kashmir from spiralling out of control and carry out the changes
in the region within the constitutional parameters, the change in the status of
the state of J&K and its division into two union territories are carried
out within framework of the Constitution of the Republic of India. We hope that
the differences between them will be resolved by political and diplomatic means
on a bilateral basis in accordance with the provisions of the Simla Agreement of
1972 and the Lahore Declaration of 1999," the Ministry of
Foreign Affairs said. Russian
envoy to India Nikolay Kudashev backed the decision, saying "India's
decision (on Jammu and Kashmir) is a sovereign decision which is as per its
Constitution. Our position on the issue is totally identical to India's
position.[5]
OTHER ARTICLES PROVIDED
IF THE INDIAN CONSTITUTION WHUICH ARE USED IN THIS ARTICLE ARE AS FOLLOWS:
·
Article 370 (3):
provides President of India has the powers to amend or repeal the Article by
issuing a notification, based on a recommendation of Constituent Assembly of
Jammu & Kashmir.[6]
·
Article 370(1)(b): 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.[7]
·
Article 370(1)(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.[8]