Article 370 granted special status to Jammu and Kashmir. Article 370 in Part XXI of the Indian Constitution, which read “Temporary, Transitional and Special Provisions.”
This special status gave the following special powers to J&K :
- It allowed J&K to have its own Constitution and Flag.
- Article 370 explicitly mentioned that only the provisions of Article 1 and Article 370 applied to the state.
- The Centre could extend the central laws on subjects included in the Instrument of Accession (IoA) — Defence, External Affairs and Communications — by “consultation” with the state government.
- The remaining central laws could be extended to the state only with the “concurrence” of the state government.
On 5th August,2019, some provisions of Article 370 were abrogated:
- Promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019. The order abrogated some provisions in Article 370 which granted special status to J&K.
- Introduced the Jammu and Kashmir Reorganization Bill 2019- state of J&K would now be bifurcated into two Union territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature, administered through a Lieutenant Governor.
- Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 was also introduced to extend the reservation for Economically Weaker Sections (EWS) in educational institutions and government jobs in Jammu and Kashmir.
Article 35A
Article 35A was included in the Constitution by a Presidential Order in 1954. It does not appear in the main body of the Constitution and is listed in Appendix I.
Article 35A of the Indian Constitution gave power to the Jammu and Kashmir Assembly to define ‘permanent residents’ of the state, their special rights and privileges.
The constitution of J&K defined a ‘permanent resident’ as a person who was a state subject on May 14, 1954, or was a resident in the state for 10 years on that date, with a legally acquired property.
As per the provisions of Article 35A, non-permanent residents couldn’t acquire immovable property, get government employment, scholarships or other aid provided by the state government.
It provided that no act of the J&K legislature under Article 35A can be challenged on the grounds of violating the Indian Constitution.
Present Status: Provisions of Article 35A were nullified by the Presidential Order issued on August 5, which has overruled the Presidential Order of 1954. However, Article 35A continues to be part of Appendix 1of Indian Constitution.
Criticism of Article 35A:
- It did not provide a number of rights (such as- property rights) to the non-permanent residents of J&K.
- It made the non-permanent residents of J&K ineligible for employment under the State government.
- The non-permanent residents were also debarred from contesting elections.
- Meritorious students(who were non-permanent residents) were denied scholarships provided by the state government. Article 35A ensured that they could not seek redressal in courts as well.
- The refugees who migrated to J&K from Pakistan during Partition were still not considered ‘State subjects’ under the J&K Constitution.
- Article 35A was inserted through a Presidential Order bypassing Article 368 which empowers only Parliament to amend the Constitution. Thus, it was considered unconstitutional.
- The laws enacted under Article 35A violate the fundamental rights under Part III of the Constitution. For instance, it violates the right to equality under Article 14 by discriminating between permanent and non-permanent residents.
- A female permanent resident (PR) of Jammu and Kashmir who marries a non state male loses many of her state subject rights. For example, her husband and children are not allowed to have permanent resident status, her children cannot inherit her property, cannot get aid provided by the state government(e.g-scholarships) and cannot vote.
Thus, it is criticized that not only Article 35A was against the idea of one united India, but also detrimental to the development of J&K.
Article 370: Steps to abrogation
Article 370(3) prevents the Union executive from amending Article 370 without the concurrence of the J&K Constituent Assembly. However, the J&K Constituent Assembly was dissolved in 1957. So, the Union government followed the following steps to abrogate the special provisions given to J&K :
- Firstly, the President issued a Presidential Order CO 272. C.O. 272 added an additional sub-clause in Article 367. This sub-clause amended the expression ‘Constituent Assembly of the State’ in Article 370(3) with “Legislative Assembly of the State.” Thus, the Order amended Article 367, not Article 370 itself .
- On the same day, the Home Minister invoked CO 272 to introduce a resolution in the Rajya Sabha that abrogated most of Article 370. This was possible without the J&K Legislative Assembly’s concurrence because the State was under President’s rule.
- This was followed by the Parliament passing the Jammu and Kashmir Reorganisation Bill, 2019 that bifurcated the State into two Union Territories: J&K and Ladakh.
J&K would be now governed under Article 239 and 239A of the Indian Constitution. These articles deal with the administration in union territories. The legislative assembly of J&K can make laws on the subjects mentioned in the State List, except public order and police.
Further, the analysis of abrogation of Article 370 is discussed here
