Every one of us has done mistakes in our life and we also learned from them. Sometimes the impact of these mistakes can be reversible but there are some mistakes whose impact are not only irreversible but it continuously impacts the life of the one.
One such mistake was done in the history of our country by our leaders and even today country is paying for that mistake. I am talking about article 35A of our constitution which derives from article 370 in 1954. But why I am suddenly talking about this article…because on 30 Oct 2017 the Hon’ble Supreme court defers the petition filed against article 35A for 3 months. The article 35A was challenged by an NGO “We the Citizens” in 2014 on the grounds that it is illegal as it is not added by constitutional amendments as per article 368, last month two Kashmiri women argued that the state’s laws, flowing from 35A, had disenfranchised their children.
These petitions again spark the debate of revoking the article 35A and section 370 of the constitution.
What is article 370, when and why it was added to the Constitution of India?
Section 370 of our constitution grants the autonomous status to the state of Jammu & Kashmir along with certain special privileges, The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.
In 1947 when India got independence there were 565 princely states present at that time, who had the options to either go with India or Pakistan or they can exist as a free nation. Maharaja Hari Singh of J&K decided to not go with either of the nations. As soon as this declaration was done by Maharaja, Pashtun tribes with the support of Pakistan invade the valley and the army of Maharaja was not able to confront them then Maharaja seeks help from India. But India couldn’t send the troops as J&K was not the part of Dominion of India hence on 26 October 1947 Maharaja Hari Singh signed the Instrument of Accession and from that day J&K becomes an integral part of India. Sheikh Abdullah was appointed as the head of the emergency administration. Now 1 thing needs to be clear here that this accession was unconditional unlike rumours going on nowadays. The accession of J&K was done on the matters: defence, foreign affairs and communications. with which it was done with other princely states.
The article 370 was worked out in late 1947 between Sheikh Abdullah, who had by then been appointed Prime Minister of J&K by the Maharaja and Nehru, it was Sheikh Abdullah, who, driven by his ambition to be ruler of an independent Kashmir and his hatred for the Maharaja, persuaded Nehru to give special status to J&K. Among his reasons were – occupation of one-third of J&K by Pakistan, reference to the UN and plebiscite.
Jawaharlal Nehru sent him to Dr B.R.Ambedkar for preparation for the draft of this article but Dr Ambedkar opposes the article which gives the special status to the J&K. Balraj Madhok reportedly said Ambedkar had clearly told the Kashmiri leader, Sheikh Abdullah: To give consent to this proposal would be a treacherous thing against the interests of India and I as the Law Minister of India, will never do it. After this Nehru sent Shiekh to Gopal Swami Ayyangar and later Ayyangar drafted and presented the article 370 in front of the constituent assembly. The proposal was torn to pieces by the Constituent Assembly and also Congress Party Executive. Later Nehru requested Sardar Vallabh Bhai Patel who himself was against the article to get this article passed in the constituent assembly.
So this is how this article got its place in the constitution under Part XXI of the Constitution: Temporary, Transitional and Special Provisions.
Special Provisions provide to J&K under Article 370
- The provision of article 238, which was omitted from the Constitution in 1956 when Indian states were reorganised, is not applicable to J&K.
- Indian parliament can’t increase or reduce the border of J&K that means article 2,3 and 4 is not applicable in case of J&K.
- Except for defence, foreign affairs, finance and communication, all other laws passed by Indian parliament needs to be passed by state government then only those laws will be applicable in the J&K.(Ex. RTI is applicable in all other states of India except J&K)
- J&K is the only state who has its own constitution and due to article 370, President of India don’t have the right to dissolve the constitution of J&K.
- President of India can’t impose financial emergency in the J&K i.e. article 360 is not applicable.
- No proclamation of emergency made by the President under Article 352 on the State of J&K without the State Government’s concurrence.
- A resident of J&K has dual citizenship and J&K has its own flag and disrespecting India national flag or national emblems is not a crime in J&K.
- The term of state assembly of J&K is 6 years unlike the other states of India.
- Initially, Indian supreme court had no jurisdiction in J&K but after the Presidential order of 1954 jurisdiction of the Supreme Court of India was extended to the State.
- Due to this article person who is not a permanent resident of J&K cannot purchase land in J&K.
- Minority Hindu & Sikhs don’t get 16% reservations.
- The most controversial part of this article is if any woman marries a man who is not a citizen of Jammu & Kashmir, she loses all her citizenship (state rights). Whereas if any woman marries a Pakistani, she will be entitled to have a citizenship of Jammu & Kashmir
Is it possible to abrogate the article 370?
In 2014 as part of election manifesto BJP pledged for integrating the state of J&K by abrogating the article 370. But, in October 2015, the High Court of Jammu and Kashmir has ruled that the Article 370 cannot be “abrogated, repealed or even amended.” It explained that the clause (3) of the Article conferred power to the State’s Constituent Assembly to recommend to the President on the matter of the repeal of the Article. After that recommendation, the President may, by public notification, declare that this Article shall cease to be operative. since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a “permanent provision” despite being titled a temporary provision in the Constitution.
But if the state assembly recommends the President of India for abrogation of this article then also under clause(3) of the article 370 abrogation can be done.
Article 35A and provisions under it
Article 35A 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. It was added to the Constitution through a Presidential Order issued by the then President of India Dr Rajendra Prasad on 14 May 1954.
As per the constitution of J&K adopted on November 17, 1956, One can only be considered as permanent resident of the state if that was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”.
So if a person is not a permanent resident of J&K then that person restricts from :
- Getting the job under state government.
- Acquiring any immovable property in J&K,
- Permanently settling down in the state and,
- Getting the scholarships and other such aids as state govt. may provide.
- Voting for state elections but can vote in national elections.
Why the article 35A is being opposed and debate of its abolition has started
- An NGO has challenged the constitutionality of Article 35A in the supreme court in 2014 on the grounds that it was not added into the constitution through amendment under article 368 and was never presented in front of the parliament and came into effect immediately.
- In 2017 two Kashmiri women argued that state law’s flowing from article 35A had disenfranchised their children.
- Children of non-state subjects do not get admission to state colleges.
- Another point is that article 35A says that any law created by J&K state assembly on permanent residency then that law will behold constitutional. Now a Kashmiri person can settle down in any part of the country but vice versa is not possible because of the 35A which is contradictory of the right to equality(article 14).
- If a person is a Non-permanent resident of J&K then that person doesn’t have the right to get the job in state govt, and hence it is against article 16 which gives equality of opportunity in matters of public employment and reservations.
- It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir.
Arguments in support of article 35A
Political parties of J&K and alleged liberals of the country are standing in support of this article by saying that:
- This is not the only article who provide special rights there are many other articles present in the constitution which provide special rights to other Indian states like, Nagaland (Article 371A) and Mizoram (Article 371G) like article 371. But they forget that these articles don’t discriminate between the people of India unlike it is done 35A.
- This article protects the demographic status of the J&K. But again this is a politically created agenda and the main point is if the demography of the state changes then their vote bank will also get impacted.
- Article 35A is only a clarificatory provision and itself does not confer any special power. But they don’t say that this article is making the laws made for PR of the J&K constitution even though they are violating the fundamental rights of the Non-permanent resident.
If Article 35A is INVALID, Jammu and Kasmir ACCESSION to India will be INVALID??
Some politician says that if 35A is removed then the citizen of J&K needs to think again about their relationship with India, they again need to decide whether they want to go with India or Pakistan or want to be a free nation. But while saying this they forget that as soon as the Maharaj Hari Singh signed the Instrument of Accession on 26 Oct 1947, J&K becomes an integral part of India. And once the instrument is signed it’s irreversible. After 7 years, Article 35A came into existence in 1954. Besides this, Jammu & Kashmir Constitution, which came into force on 26 January 1957, (3 Years after article 35A), The State of Jammu and Kashmir is, and shall be an integral part of the Union of India, and this section cannot be legally amended as per provisions of the J&K constitution. Also, section3 of the J&K Constitution clearly states, “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.”
Hence It can be logically concluded, that Jammu and Kashmir is an integral part of the Indian Union with, Or without Article 370 and its derivative Article 35A.
At the time of Independence, there was no united India but there was an India which was broke in 565 parts. These 565 parts were collected together to make today’s India. But because of the romance of one person and the ambition of the other these two articles come into existence and because of these J&K becomes an alien state in India itself. These articles on the name of giving special status, discriminating the people either based on their resident or on gender. I can’t say whether these articles have done anything good for the valley or not but one thing which I am sure about is that these two articles become a weapon for few people in the valley to keep their political or Monterey benefits above the people of J&K which is not at all good.
In the end, I just want to say that J&K was and will be an integral part of India and for that, we don’t need any such articles.