Articles 370 and 35A

March 5, 2019

A recent central ordinance, which extends reservation to SCs and STs in J&K, throws the spotlight on Article 35A, as well as Article 370 from which it derives.

The Constitution (Application to Jammu and Kashmir) Amendment Order, 2019:

The Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 will serve the purpose of application of relevant provision of the constitution as amended through the constitution (77th Amendment) act, 2019 for Jammu and Kashmir by issuing the constitution Amendment order.
Once notified, this will pave the way for giving the benefit of promotion in service to the SCs, STs and also extend the reservation of up to 10 per cent for the economically weaker section in educational institution and public employment in addition to the existing reservation in the state.

The Jammu and Kashmir Reservation (Amendment) Ordinance, 2019:

The Cabinet has approved the Jammu and Kashmir Reservation (Amendment) Ordinance, 2019.
This ordinance provides for amendment in the Jammu and Kashmir reservation act 2004 to bringing persons residing in the areas adjoining International Border within the ambit of reservation at par with persons living in areas adjoining actual line of control.

Article 370:

It was included in the Constitution on October 17, 1949.
Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution.
It restricts Parliament’s legislative powers in respect of J&K.
- For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. The IoA gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications.
- But for extending it to other matters, “concurrence” of the state government is mandatory.

Is Article 370 a temporary provision?

The heading of this part is ‘Temporary, Transitional and Special Provisions’.
Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
- Article 370(3) permits deletion of Article 370 by a Presidential Order.
- Such an order, however, is to be preceded by the concurrence of the J&K’s State Assembly.
Another interpretation was that accession was temporary until a plebiscite.
The Union government, in a written reply in Parliament last year, said there is no proposal to remove Article 370.
In Sampat Prakash (1969) a five-judge Bench of the SC refused to accept Article 370 as temporary. said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision.
Delhi High Court in Kumari Vijayalaksmi (2017) too rejected a petition that said Article 370 is temporary and its continuation is a fraud on the Constitution.

Significance of Article 370:

Article 370 itself mentions Article 1, which includes J&K in the list of states. Article 370 has been described as a tunnel through which the Constitution is applied to J&K.
Article 3 of the J&K Constitution declares J&K to be an integral part of India.
In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is 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.
Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.”
Article 370 is not an issue of integration but of autonomy. Those who advocate its deletion are more concerned with uniformity rather than integration.

Has effect of Article 370 been diluted?

Nehru, however, said in Lok Sabha on November 27, 1963 that “Article 370 has eroded”.
India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status.
By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments. Ninety-four of 97 entries in the Union List are applicable to J&K; 26 out of 47 items of the Concurrent List have been extended.; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules.

Article 35A:

Background:
- Article 35A stems from Article 370. It was not passed as per the amending process given in Article 368, but was inserted on the recommendation of J&K’s Constituent Assembly through a Presidential Order in 1954.
- Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I.
Salient features:
- It empowers the J&K legislature to define permanent residents (PRs) of the state.
- The J&K Constitution defines a PR as a person who 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”.
- The definition of PR can be altered when a law is passed for the same by a two-thirds majority of J&K legislature.
Opposition to it: In 2014, an NGO We the Citizens filed a writ petition seeking the striking down of Article 35A on the ground that -
- It bars non-state subjects from settling and buying property in J&K and encourages a separate identity.
- Some believe that the only way to permanently end the Kashmir dispute is to alter its demography by settling people from outside the state, with the right to acquire land and property, and vote in the assembly elections.
However, political parties in J&K oppose it on the following grounds:
- It is a part of series of moves to breach the state’s special status and going ahead with it will have dangerous ramifications.
- Like Article 370, Article 35A was negotiated between the princely state of J&K and the government of India and it is the bedrock of accession.
Present status: The Supreme Court will examine whether it is unconstitutional or violates the basic structure of the Constitution.