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Article 370 and 35(a)

Article 370 acknowledges the state of Jammu & Kashmir as the special status in terms of autonomy and its ability to formulate laws for the state’s permanent residents.

In 1954, Presidential order among other thing , the Fundamental Rights in the Indian Constitution were made applicable to Jammu & Kashmir with exception.
But, In June 2019 it was held unconstitutional with a legal process because it guarantees significant autonomy for the Muslim-majority state.

Timeline of Article 370 & 35(a)
· 26th October 1947
Between the government of India and Maharaja Harisingh an Instrument of accession was signed and Jammu & Kashmir became the interior part of India.

· 17th October 1949
In 1949, the constitution of India was not formed, it was still in a process of writing because of that article 370 was held incorporate.

· 26th January 1950
Constitution of India came into force, and it describes two main things related to state of Jammu & Kashmir-
Article 1- Constitution declares Jammu & Kashmir as the state of India.

Article 370 – Special status to Jammu & Kashmir.

· 14th May 1954
The first presidential order was passed by Dr. Rajendra Prasad and it was named as-“ The Constitution – Application to J&K order 1954 and it included article 35(A) in constitution.

· 17th November 1956
Constitution of J&K came into force and it itself declares it as a interior part of India.
· 1990
Armed forces special power act was imposed.

· 2015
BJP took help from People Democratic Party and formed a government in J&K.

· June 2018
When BJP cracked the alliance with PDP than the governor rule started in J&K.

· December 2018
President rule was declared in J&K.

· May 2019
BJP won the parliamentary election.Their election manifesto talked about scrapping of article 35(A) & 370.

Article 370
Temporary Provisions With Respect To The State Jammu And Kashmir-
1. Powers of the parliament
Generally, Parliament has the power that either the matter is related with union or concurrent list it can make all the laws for all the states. But, Article 370 says that for state of Jammu & Kashmir parliament can only make rules related to the conditions which are singed in the Instrument of Accession.

Conditions of Instrument of Accession are-
Defense
Communication

External affairs
And this covers total 31 matters and parliament can only make any law according to the same. And if parliament wants to make any law except the condition than it has to take permission from the state government.
Following things basically 370 includes-

  • Part of constitution
  • Special status
  • Temporary provisions
  • Removal-
    If president want he can issue a public notice and say that from today onwards Article 370 is unconstitutional. But, before it has to take prior permission of constituent assembly of J & K.

2. Laws Applicable
Article 1 and 370 of the constitution,
All such laws which are specified by the president in the 1954’s order.

Procedure of making law in Jammu & Kashmir-
a. Parliament
b. State assembly
c. It ratifies( passes)
d. Than only applicable in the state .

Article 35(A)
Rights of The Permanent Residents of J&K-
Notwithstanding anything contained in this Constitution, no existing law in force in the state of J&K , and no law hereafter enacted by the legislature of the state,-
a. Defining the classes of persons who are , or shall be permanent residents of the state of J&K; or
b. Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respect-
i. Employment under the state government
ii. Acquisition of immovable property in the state
iii. Settlement in the state
iv. Right to scholarships and such other forms of aid as the state government may provide.
Shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens on India by any provision of this part .

Now Who Will Be The Permanent Resident Of The State?
The Jammu & Kashmir Constitution – November 17, 1956
· 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”.
- No person who is not permanent resident of J&K can own property in Jammu and Kashmir.
- No person who is not a permanent resident of J&K can obtain job within J&K government.
- No person who is not permanent resident of J&K can join any professional course run by J&K government or get any form of government aid out of government funds.

History of Article 35(A)-
· In 1846, Treaty of Amritsar was held between British government and Maharaja Gulab singh and in this treaty the JAMMU & KASHMIR was given to Maharaja Gulab singh and it became a princely state.
· Princely state- State subject

British government- British colonial subjects

  • State subjects- Legal provisions (1912-1932)
  • 1927 Hereditary state subject order
  • 1. Right to government office
  • 2. Right to use and own land, etc.

Which are not available to Non state subject matters.

But, the leader of Jammu and Kashmir and the constituent assembly wanted a different treatment for J&K so Dr. Rajendra Prasad had introduced an presidential order on 14th may 1956 named The Constitution (Application to Jammu & Kashmir ) order, 1954 and article 35(a) was introduced by the same.

Solution By The Parliament
In 1954- a presidential order was passed named as The Constitution (Application to J&K) order 1954 and because of the same Article 35(a) and constitution of J&K came into existence.

Than on August 5th 2019, President Ram Nath Govind had used his powers and he came with a new order of 2019 named as The Constitution (Application to J&K) order 2019, and this order describes that it replaces the order of 1954. And then Article 35 and constitution of J&K now cease to exist.

Now, when 2019 presidential order was passed Home Minister Amit Shah has given two resolutions of the same.
# Rendering Article 370 INOPRATIVE
By 370(3) constituent assembly is now known as legislative assembly.
Added in article 367 clause (4) interpretation.

# J&K re- Organisation bill
Two new Union Territory was added –
Sec3 - Ladakh ( Kargil – Leh ) without legislation
Sec4 – J&K with legislation.

History Of The Whole Article 370 And 35(A):
In 1947, when Pakistan attacks Jammu and Kashmir and because of that Maharaja Hari singh demanded assistance from the Indian government than Indian government says from which position we help you, when you are not a part of India.

Than on 26th October 1947 between Maharaja hari singh and Indian government has signed a Instrument of accession.

So through it J&K now became an interior part of India. Than Indian government send their army force to protect J&K and threw away the Pakistan army.

On this point, Sardar valab bhai patel said we should go on a state of war with Pakistan. All Indian army we should send their and remove all the Pakistan army from there. But Jawaharlal Nehru was not very much satisfied with his idea, he wanted peace.

He said to Mohammad Ali Jinha that we have signed instrument of accession which means J&K is the interior part of India. Now Mohammad Ali Jinha didn’t consider the instrument of accession and says that you have signed it without the consent and give this no value.

This allegation was not accepted by the Jawaharlal Nehru and he took this matter to UN.

UN has not given very much value to the instrument of accession and it declares J&K as a Disputed Area.

Now, UN has given one solution to this problem and it is PLEBISCITE. (It is the voting among the people of J&K i.e. they will now choose either they have to become a part of India or Pakistan.)
And whatever it has been decided in plebiscite, J&K will afterwards theirs.

But to announce plebiscite UN has given two conditions-
# All the army of the Pakistan should get back off from J&K.
# And all the Army of India should take a back step from J&K.

But, both Countries didn’t fulfill the conditions and it won’t happen.
When all this things were happening J&K has a new leader named Sheikh-ab-dulla.
He was already representing many political issues of J&K. Earlier his political party was named as “All India J&K Muslim conference” in which he was representing the majority population of J&K. Later this party was known as National conference in which he was representing all the classes of J&K.
Now,

On one hand UN wanted plebiscite and on the other hand sheikh ab dulla was emerging. In all between Jawaharlal Nehru thought that why not we should do something through which the people of J&K will understand us their own and on this note article 370 was came into existence.

Between sheikh ab dulla and Indian government a meeting was held which was named Delhi Agreement. In this meeting all the conditions of the instrument of accession was discussed to incorporate it in constitution.

What were the changes came after the detachment of article 370& article 35(a):-
Before:
· Dual citizenship
· Special power conferred
· Article 356& 360 not applicable
· Separate flag
· No reservation for minorities
· Separate constitution
· If a women from J&K marries a non state, she would lose property rights
· People from across the country could not buy land / settle in J&K.

After
· Single citizenship
· No special powers
· Article 356 & 360 now applicable
· Tricolor will be only flag
· Reservation for minorities
· Constitution of India would apply
· Women can marry state, non-state subject without losing property rights
· Prohibition removed.

Conclusion
Indian government has recently revoked special status that was given to Jammu & Kashmir and made them into two union territories. This may turn into both good and bad. This is one of the good and brave move to resolve the land dispute between India and Pakistan. At the same time this is one of the bad move when everyone across the country are fearing about Hindu extremism. Some consider that this move of revoking Article 370 may backfire at any movement.

Articles on 370 Jammu and Kashmir Special Status

  1. Judicial History of Article 370: SC Rulings On Jammu and Kashmir Special Status
  2. Abrogation of Article 370 of Constitution of India consistent with the Principles of Indian Federalism
  3. Article 370 The Only Bridge Which Connects The People of J&K To The People of India
  4. The Emergence of New Jammu And Kashmir
  5. Whether Abrogation of Article 370 And Bifurcation of State of J and K Is Legitimate Or Not?
  6. Articles 370 and 35A of the Constitution of India have now been Buried Ultimately
  7. Does Scrapping of Art 370 Poses A Threat to Asymmetrical Federalism In India
  8. Amendment of Article 370 And Issues Arising Thereof
  9. It Is Not About Bhoomi Maatr It Is About Maatr Bhoomi Revocation of Article 370 And Article 35-A
  10. Jammu And Kashmir No More Special
  11. Brief on Article 370 And President Order Dated 05/08/2019
  12. Legal History of Article 370 and 35A and Current Status
  13. Article 35-A A Biggest Fraud on Constitution of India
  14. Temporary provision about Jammu & Kashmir
  15. Integration of J&K With India Is Now Full And Final
  16. Jammu and Kashmir HC Upholds PM's Employment Package (2009) For Kashmiri Pandits Living In The Valley
  17. J&K Now Stands Fully And Firmly Integrated With India
  18. Daring Resolve Taken By Centre on Jammu And Kashmir
  19. The Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 and The Jammu and Kashmir Re organization Bill, 2019

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