Retelling of the Intriguing Story of Article 370 and 35A

Frequently debated in general, Article 370 and 35A were some of the few unimaginable byproducts of the Partition of India which holds its story in post-independent 1947 India.

Contextually, during the climax hours of British colonialism, India was geopolitically subdivided into British provinces and princely states where the former ones were completely controlled and administered by the colonial rulers, the latter ones were governed by Indian princes within the British paramountcy. This implies the British had unconditional political and legal sovereignty over provinces but on specifically defined matters in princely states.

Since 1935, the princely states were reluctant to establish an All-India Federation along with provinces but as the Partition of India was finalized in the Indian Independence Act 1947, the princely states, with no doors out, have only three options: ❎ Either to join Indian dominion OR to join Pakistan dominion, OR ❎ To become powerful enough to be independent. Under political pressure, out of 565 princely states, 548 acceded to India and 13 to Pakistan while 3, namely Hyderabad, Junagarh, and Jammu & Kashmir was in a state of confusion.

Amidst political tensions, Hyderabad & Junagarh were added into Indian territory by police action and referendum respectively but the head of J&K, Raja Hari Singh neither wanted to join India nor Pakistan but to declare J&K as an independent nation. But destiny was neither in his favour nor under his control.

Within no time, the Infuriated Pakistani tribesmen attacked Jammu & Kashmir and solidified their power over 1/3rd territory of the state which is presently referred to as PoK i.e. Pakistan Occupied Kashmir. To preserve J&K from the further territorial expansion by Pakistan and to defenestrate the tribesmen from the territory of J&K that is forcibly seized by them, Raja Hari Singh sought military assistance from India but the question was ” from what position, should or can India defend J&K?”

In this political deadlock, Hari Singh acceded Jammu and Kashmir to India through an Instrument of Accession and consequently, the Indian military prevented the further seizure of J&K by Pakistani tribesmen.

What are Article 370 and Article 35 A and why they are problematic?

Having glanced at the context of our current discussion, let’s discuss how this Instrument of Accession signed with Jammu & Kashmir was different from that signed with other princely states. Precisely, it is because of two clauses of this agreement, which were:

• Clause-7: Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.

• Clause-8: Nothing in this Instrument affects the continuance of my sovereignty in and over this state, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this state or the validity of any law at present in force in this state.

Since these provisions were against the vision of an integrated India, Dr B.R. Ambedkar, being the Chairman of Drafting Committee of Constituent Assembly, dissented to approve these preconditions or to draft or to incorporate such discriminatory provision in the Constitution. Here, Mr Jawaharlal Nehru bestowed this responsibility to draft these provisions to Gopalaswamy Ayangar amidst the rising demand of “Ironclad autonomy” by Sher-e- Kashmir Sheikh Abdullah.

Consequently, Mr Ayangar framed Article 306 A which was later included as Article 370 in Part XXI titled “TEMPORARY TRANSITIONAL AND SPECIAL PROVISIONS” in the original constitution of India. Under Article 370, J&K attained special power to have a separate constitution, separate state flag, and complete autonomy over internal affairs of the state except for 38 matters of defence foreign affairs, defence and communications.

As a result of this Article, Part-6 Centre-State Relations, Article 360 Financial Emergency, Part 4: Directive Principles of State Policy, Part 4A: Fundamental Duties, Indian Penal Code and Preventive Detention Act, etc. did not apply to the state of Jammu and Kashmir.

In addition to this, Article 35A that came into existence through the Presidential Order of 1954 [ The Constitution (Application of J&K) Order 1954]also empowered the State Assembly to define the “permanent residents” of the state and to provide them special privileges and rights of scholarship, services, land, and settlement. This Article is largely believed as a discriminatory provision to women and non- J&K permanent residents because they can not own property and public services in the state while the reverse is possible. Also, it acknowledges the idea of “class within a class” which is against the constitutional fabric of Sovereign & Integrated India.

Abrogation of Article 370 and 35A and Its Impacts:

Since these articles were discriminatory to a larger cross-section of India, the demand for abrogation of Article 370 and 35A  is very common from time to time but what is the procedure to do so? According to Article 370(3), Article 370 will cease to exist if the President issue such notification on the recommendation of the “Constituent Assembly of State.”

But like the Constituent Assembly of India, the Constituent Assembly of J&K also dissolved in 1956 after framing the constitution of the state, and therefore, initially, it was a “Temporary Transitional and Special Provision” which aftermath the dissolution of the Constituent Assembly turned out to be a permanent feature.

To resolve the issue, the honourable president of India Ram Nath Kovind amended the provision of Article 370(3) under a new Presidential order called “The Constitution [ Application of J&K] Order 2019” where the phrase “Constituent Assembly of state” was replaced with “the Legislative Assembly of State.” Through this Presidential Order 2019, Article 370 and 35 A were abrogated which is a forward-looking step from a wider spectrum because of the following reasons:

1. It will allow the stronger integration of J&K residents with the citizens of India as equals and therefore, erase the persisting differences.

2. Article-3, Article 360 Financial Emergency, Part 4: Directive Principles of State Policy, Part 4A: Fundamental Duties, Indian Penal Code and Preventive Detention Act, etc. will now be applicable in J&K which will enhance the political conditions of the state.

3. It will allow public and private investment in the state of J&K.

4. It will enhance the educational and infrastructural facilities in J&K.

5. It will allow all the citizens of India to own property in J&K which will enhance the socio-economic conditions of the state.

Further, the Jammu &Kashmir Reorganisation Act 2019 was passed in the Parliament to bifurcate the state of Jammu & Kashmir into two separate union territories, namely the J&K which will have a legislative assembly and the other is Ladakh which won’t have it. Now, the Union Government can ensure the holistic socio-politico-economic development of the state and manage its resources, etc.

To conclude, the abrogation of Article 370 and 35A are remarkable steps to enhance the socio-politico-economic conditions of J&K and to create a more united and integrated India.