Explained: Article 370 & Article 35-A
Article 370 and Article 35-A is perhaps one of the most controversial pieces of legislation. Many believe that it provides an unusual “special status” to Jammu and Kashmir. Well, how true is this claim? In this rather lengthy article, we will look at the background, origin, implications, and impact of the possible deletion of both Articles 370 and 35-A.
Prelude
As 1947 approached, there were more than 500 princely states in British India. Ruled by Indian princes, they owed allegiance to British. In June 1947, when Partition plan was put in place, states were given the option to choose. Some chose India. Some chose Pakistan. Some chose to remain independent. Hari Singh, who was the ruler of Kashmir province choose to remain independent. He signed a stand-alone agreement with India and Pakistan and vowed neutrality. Shortly afterward, the Indian Independence Act of 1947 was passed which effectively ended British rule, leading to the emergence of independent India and Pakistan, rendering all afore-signed agreements void. These led to three entities — India, Pakistan and states that had chosen to remain independent. Jammu and Kashmir was one of them.
But political situation inside J&K itself was undergoing a churn. A popular grassroots movement was gathering storm to overthrow the monarchy and install a democratic form of government. Chief among them was Mohammed Sheikh Abdullah, who wanted to overthrow the monarchy and establish a democratic, socialist state of Jammu and Kashmir, one which was to remain a part of India. These clearly weren’t a favorable proposition to either Hari Singh or to Pakistan, who wanted Kashmir to join them given its predominantly Muslim demography.
Predictably, Pakistan attacked Jammu and Kashmir, sending rangers across the border. The stand-alone agreement in tatters, Hari Singh turned to India for help. Lord Mountbatten, who was serving as India’s governor-general at the time, vowed assistance pending J&K’s accession to India. Desperate times call for desperate measures. After much delay and back and forth discussion, Hari Singh signed an Instrument of Accession (IoA) with the Government of India on 26th October 1947.
In practice, this was akin to many other IoA’s that other princely states had signed with India, with the exception that while these states also went forward to sign a Merger Agreement (which forfeited their freedom and independence to the government of India) with India, Jammu and Kashmir didn’t. Furthermore, while IoA’s with other states were mostly unconditional as were the merger agreements, the Instrument of Accession that Hari Singh signed with India had major limitations. In theory, he acceded only Defence, External Affairs and Communication to India, rest all was kept under the jurisprudence of J&K’s state legislature.
Following the signing of Instrument of Accession, Indian forces entered the state and a full-fledged war broke out between the two neighbors, the first of many more still to come. In the meantime, India’s Prime Minister Pt. Jawaharlal Nehru did two things. One, Maharaja Hari Singh was told to make way for Sheikh Abdullah, who was appointed as the new Prime Minister of the State and two, he requested the United Nations to call Pakistan to call off the war. Unlike today, cold war geopolitics meant that the USA and Europe dominated UNSC, sensing Pakistan’s willingness to join their military block, called for a ceasefire. Furthermore, in a series of resolutions (UNSC Resolution 37, 39, 47 and 51), UNSC called for a UN-monitored plebiscite to grant people their right to self-determination. All this was subject to two necessary preconditions — withdrawal of Pakistani and Indian troops and complete demilitarization. Predictably, none of these happened.
Setting up of the Constituent Assembly of Jammu and Kashmir
In the midst of a war with Pakistan and UN resolutions calling for self-determination, Indian PM Pt. Nehru and Sheikh Abdullah decided to establish a constituent assembly for the state. The move was aimed at showing the world that unlike what Pakistan was claiming at the world stage, the IoA wasn’t signed under duress but was a legitimate demand of the people. The constituent assembly would not only prove that J&K is formally a part of India but will also buttress India’s credentials of peace and democracy.
Initially, the assembly was composed of members of the National Conference (NC), headed by Abdullah, who was also the prime minister.
(Sidenote: This assembly will go on to play a huge role in the history of Jammu and Kashmir and its relationship with India. So, hold it tightly.)
Birth of Article 370
While all this was going on, the Indian Constituent Assembly was drafting and preparing a new Indian Constitution and the legal limbo meant that confusion existed about the exact nature of Jammu and Kashmir with Indian union. After months of discussion, a constitutional link was decided between the Union of India and the state of Jammu and Kashmir. This constitution link was called Article 370. It was meant to be a temporary provision until the question of plebiscite and demilitarization was solved.
When the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this discrimination please?” The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”
The Hindu, 06th December 2013.
Among other things, Article 370 laid down few key provisions:
- The Parliament of India can only make laws on subjects that have been acceded to it under the IoA i.e. External Affairs, Defence and Communication. But even on these subjects, the Union will have to consult the Government of Jammu and Kashmir.
- The other constitutional provisions can also be made applicable to the state in the form of Presidential orders i.e. an order from the President of India. But this too will require the concurrence (or permission, as opposed to consultation) of the Government of Jammu and Kashmir followed by its ratification from the Constituent Assembly of Jammu and Kashmir.
- Any amendment to the Indian Constitution (under Article 368) will not apply automatically to the state of Jammu and Kashmir unless agreed upon by the state government and its assembly.
Nehru-Sheikh Talks and The Delhi Agreement of 1952
Apart from Article 370 which constitutionally linked the state to India, only Article 1 (which said India, that is Bharat, shall be a union of states) applied to J&K. Many important provisions like Fundamental Rights, Jurisdiction of the Supreme Court and the ECI were not applicable to the state. In order to make these necessary changes, Nehru and Sheikh Abdullah entered into concerted talks which led to the Delhi Agreement of 1952.
Among others, it was agreed that the Indian national flag will be accorded the same status in J&K as it is anywhere in the country (Sidenote: Jammu and Kashmir has its own flag), that the Supreme Court will be the highest judicial body and that many Fundamental Rights will be made applicable in the state as well. Many constitutional provisions made their way to the state by dint of this agreement.
The Origin of the concept of Permanent Residents
Apart from the aforementioned agreement, Nehru-Sheikh talks also discussed the State Subject Law, 1927 which was passed by the Dogra King Maharaja Hari Singh and reserved most of the government jobs for Kashmiri Pandits. The Pandits feared that people from neighboring Punjab and Himachal Pradesh could come to the state, marry and acquire land and subsequently pocket the jobs. So they petitioned Hari Singh to stop outsiders from owning any land or property in the state, by means of marriage or otherwise and the king agreed, leading to the passage of State Subjects Bill of 1927. The aim was to keep Muslims and outsiders away from government jobs.
(Interesting trivia: Yeah!! Permanent Residency was not brought in by Muslim leaders of J&K or Nehru. It was brought in by KPs and Hari Singh.)
Abdullah and the Kashmir delegation wanted the state subject law to remain valid. Concerns were raised that it would be impossible to do so in the face of Chapter III of the constitution, which among other things provided equality (Article 14) and freedom of movement (Article 19) to all citizens. Both Nehru and Sheikh Abdullah agreed that the State subject law will continue to remain in force, with Nehru promising a way out.
The Presidential Order of 1954 and the introduction of Article 35-A
While the negotiations were going on, there were intelligence reports suggesting that Abdullah is starting to develop cold feet and might backtrack or slow down the negotiations. This led to his arrest and the re-negotiations continued with Bakshi G. Muhammad, the new prime minister of the state.
The new agreement that was reached included a provision to continue with the state subjects law of 1927 and to implement the same, the mother of all presidential orders i.e. The Presidential Order of 1954 was issued by then President Rajendra Prasad which among other things introduced a new article 35-A to the Indian Constitution. The new proviso empowered the Jammu and Kashmir’s legislature to define and decide who could be a citizen of the state and allowed them to confer on them certain rights and privileges even if they stood in contravention to the fundamental rights mentioned in Chapter III of the Indian Constitution.
Among other things, Article 35-A stated that no outsider, who is not a permanent resident of Jammu and Kashmir can acquire (by virtue of marriage) or buy land or property in the state; they can’t get government jobs, scholarships or aids in the state.
So, in essence, Article 35-A is nothing but the continuation of the State Subjects Law of 1927 that was passed by Maharaja Hari Singh to safeguard the privileges of the erstwhile Kashmiri Pandits with the benefit now extended to every citizen of the state and not just the KPs.
Following the Presidential Order of 1954, the state constituent assembly drafted and passed the new constitution of Jammu and Kashmir wherein it was declared that J&K is an integral part of the Union of India. Following the passage of the constitution, the constituent assembly was dissolved and a state legislative assembly took its place. Subsequently, Sadr-e-Riyasat was renamed as Governor, Prime Minister became the Chief Minister and J&K state legislature lost the power to further amend the constitution of Jammu and Kashmir, thereby putting a full stop to any future political maneuvering that might have made it possible for the state to secede from the Union (Yeah!! You read that right. Without 1954 order that brought 35-A, J&K would have already left the Union, if they so decided).
Arguments against the inclusion of Article 35-A
Over the years, many petitioners have challenged the constitutional validity of Article 35-A. Chief among them is one by the J&K Study center that argued that since any amendment to the Indian Constitution has to be passed by Parliament through Article 368, how come was the Fundamental Rights (which requires a special majority) chapter altered with an executive order, without taking the Indian Parliament into account.
Furthermore, since Article 35-A goes against the basic structure of the Constitution (it overrides Rights to Equality i.e. Article 14 and Freedom of Movement i.e. Article 19, among others) and the writ of the constitution runs across every state, including J&K, the said amendment is invalid. This argument is very silly. It has to be understood that the very concept of “basic structures” wasn’t available until 1973 and that too was limited to amendments done under Article 368 and not Article 370. The presidential order of 1954, which introduced Article 35-A was brought in through Article 370 (and not 368) and so the question of it violating the basic structure doctrine doesn’t arise.
(Trivia: On 23rd April, 1973, a 13-judge bench in Kesavananda Bharati Case decided that the power to amend the constitution under Article 368 isn’t unlimited and no amendments can be brought in if they violate the basic structure of the constitution (like Fundamental Rights, Separation of Power, Independence of Judiciary, etc.) i.e. the preamble.)
The third grouse against Article 35-A is based on the premise that it is violative of the Rights of Women. It goes on to argue that if a woman who is a permanent resident (PR) of J&K marries someone outside the state, her PR status goes for a toss and all her rights vis-a-vis the Article 35-A is lost. This argument is a complete fabrication. Every woman is free to marry outside the state and keep her PR status intact as well.
But despite a flurry of petitions, Supreme Court, time and again, has made it clear that one, the presidential order can only be issued in concurrence with the state government (Prem Nath Kaul vs State of J&K, 1959); two, that the Article 370 has never ceased to be operative meaning that all presidential orders including that of 1954 is perfectly legal and in accordance with the constitution (Sampat Prakash vs State of J&K, 1969) and three, that the presidential orders can “extend and enlarge” the scope of constitutional provisions as applicable to the state of J&K (SBI vs Santosh Gupta, 2016).
The Dichotomy of Article 35-A
- While media, politicians and uninformed citizenry waste no time in painting Article 35-A as some sort of unusual special concession to the Jammu and Kashmir, the reality is starkly opposite. Jammu and Kashmir, when it first came into being, enjoyed almost absolute autonomy. No constitutional provision, except Article 1 and 370 applied to it. By virtue of Presidential Order of 1954 and subsequent inclusion of Article 35-A, it ceded much of its “special autonomy” to the Indian Union. It didn’t give J&K more power, it took many away from it. Among other things, the Presidential Order brought SC, UPSC, CAG, All India Services, ECI, and fundamental rights to the state. It also took away the state legislature’s power to amend the J&K constitution. It made it possible for the Indian Election Commission to be able to conduct elections in the state, which is the benchmark of democracy and proof that it belongs to India. And by removing it, we will be giving it more autonomous space than it already occupies.
- One other instance where J&K lost out its autonomy (and in fact enjoys lesser power than the rest of the country) is Presidents’ Rule under Article 356. While the presidents’ rule can’t be extended beyond 3 years anywhere (6 months at a time) without bringing in a special amendment to the constitution (with special majority as it happened in Punjab in 1990–91), in Jammu and Kashmir it can go on for much longer (one such president rule lasted for almost 7 years from 1990–96). All that is required is a simple Presidential Order from the President of India. So, in essence, its the rest of the country and not J&K that actually enjoy a “special status”.
- The right-wing in the country, so vociferously opposed to Article 35-A now (perhaps conveniently forgetting that it forms an essential part of the 1954 order), hailed the order as a “commendable step” at that time. The move to bring in more constitutional provision to the state in lieu of granting certain concessions as regards its land and property (which was and has since then been extended to many other states) and integrate J&K with India was seen as a significant step in the right direction. Article 35-A, which formed a small part of the order wasn’t even given a thought.
This selective amnesia is characteristic of the right-wing in the country, who, as the time flows, take no time in adopting some and discarding many of the beliefs that they held, shared or were admonished for. Take, for instance, Sardar Patel. The man who once banned RSS for being a terrorist organization has conveniently been appropriated as a symbol of unity, which he undoubtedly was but not in the way they would have liked. Or of Veer Savarkar, who wrote mercy petitions to the British, abandoned the freedom fight and supported British over Indian freedom fighters. He has since then been resurrected as someone who dies fighting for India’s freedom. The laundry list runs long. The gist is that not everything that they say is worth taking note of. Most of it is pure political posturing, which as King Lear said, “Ebb and Flow by the Moon”.
Asymmetric Federalism
The concept of granting special status to a few states is neither new in India or unique to the state of Jammu and Kashmir alone. Article 371 and its various subsections viz. Article 371A to Article 371J, extend special status to the state of Maharashtra, Gujarat, Andhra Pradesh, Goa, Karnataka and to the NE states of Assam, Nagaland, AP, Manipur, Mizoram, and Sikkim too.
- Article 371A, passed in 1962 explicitly bars Indian Parliament from making laws with respect to “ownership and transfer of land” and “its resources” in Nagaland. The recent ongoing tussle over the
- Article 371G extends a similar provision with respect to the state of Mizoram. It bars Indian Parliament from making laws that might impact “ownership and transfer of land” in the state unless the state legislature so decides.
- In Himachal Pradesh, no outsiders can buy agricultural land.
- A recent addition has been the Article 371J, which provides reservation in government jobs to people belonging to the six backward districts of Karnataka-Hyderabad, which stands in violation of Article 16 that prohibits discrimination in public employment on the basis of Residence.
Similar provisions exist in almost every state, where a portion of privilege is reserved for locals. While some are in accordance with the Rights of Minorities, Women and backward classes, many are plain violations of the basic structure of the Indian Constitution. So, Article 35-A extending a similar benefit to Jammu and Kashmir is nothing new or Nobel. It’s standard practice.
And it is not just India that accords a special status to one of its provinces. China has a special arrangement called “One Country — Two Systems” with Hong Kong and an equally egregious arrangement with Macau and Taiwan, which China claims to be its part but function differently than the mainland. Similarly, Britain has conferred “special status” with substantial autonomy to Scotland, Wales and Northern Ireland.
The point is that in a Union, it is not necessary that there should be a one-size-fits-all scheme. Every state is different; its culture, its history, its people and they should be taken into account too. As long as the asymmetricity in federalism doesn’t harm its unity, it is okay. After all, we don’t share the same disdain for special status granted to domiciled people in regards to jobs, admissions in educational institutions, and privileges in almost every state. Why is the case for Jammu and Kashmir any different?
Call for scrapping 370 and 35-A: Political or legitimate concern?
Argument 1: Article 35-A is discriminatory because it prevents millions who had migrated from Pakistan following violence and taken refugee in the state have been rendered homeless. On the face of it, the notion seems humanitarian, liberal even until you look at some of the other proposals that the same proponents have also taken up.
NRC in Assam seeks to criminalize millions (almost 40 lakhs at the last count) on the pretext that they are Bangladeshi infiltrators and have illegally entered India. They have to show documentary proof dating back to pre-1971, when they were fleeing war-torn Bangladesh, to slow and biased bureaucratic process, failing which they will be thrown into “Concentration Camps” being built (Yes! They sound the same as Nazi concentration camps or Chinese Uighurs detention centers, because that’s they are minus the gasification). If the well-being of fleeing refugees was their motive, perhaps this would have been a better place to start.
Argument 2: Scrapping 35-A will allow outsiders to acquire property in the state and gain voting rights, thereby altering its demography. Again, this is precisely the thing that they have been arguing against in Manipur, Assam, and Nagaland. NRC in Assam, documentation of indigenous population in Mizoram, Separate Nagalim and ILP in Manipur are some of the issues that the same parties covet and support. You can’t be throwing refugees out in one state and telling other states to let them in. It’s not an ideology or a well-thought-out policy. It’s plain hypocrisy.
What if there is no Article 370 and Article 35-A?
Prior to 1954 Presidential order, the limited nature of the Instrument of accession meant that there existed a very weak link between the state and the Union of India. It was perhaps this very reason which prompted Sheikh Abdullah to declare himself as the “Prime Minister” (as opposed to chief minister), provided for a separate flag and a separate constituent assembly, set up custom checkpoints at J&K-India border, give SC no jurisdiction over J&K, constitute a separate armed force comprising of erstwhile armed militias and send independent trade commissioners to foreign countries.
All this and more effectively ended with the introduction of 1954 order (of which Article 35-A is a part). So, if one is of the view that these provisions must be done away with, think of the losses we might suffer to our idea of a united India. We will return to the pre-1950 world and this time with a lot of negative baggage and a radically changed demographic, social and political reality of Jammu and Kashmir. The result will be just the opposite of what we had set out to achieve.
Also, there is no valid ground to scrap Article 35-A other than being masochistic and short-sighted like the one seen in the ill-fated implementation of Demonetisation. If someone argues that it is invalid because it was passed as a presidential order without taking the parliamentary route, we will effectively be arguing that all the successive orders starting from 1954 are invalid. That will mean no SC jurisdiction in the state, no ECI, no financial integration, separate J&K army, no legislative assembly, chief minister goes back to being a prime minister and there’s a Sadr-e-Riyasat in place of a governor. In a nutshell, we wind the clock back to 1954 and make Jammu and Kashmir an almost independent province, ruled by its own law and not being answerable to anyone in India.
Can Article 370 be deleted?
There are four prominent arguments in regards to this.
- Since Article 370 is a provisional feature, all that is needed to delete it is a Presidential order calling for its deletion. But as Article 370 itself says, this order can only be issued in concurrence with the Constituent Assembly and there is no Constituent Assembly. It was over the moment the 1954 Presidential Order was passed.
- Great, just create a new constituent assembly (CA) solely for this purpose. But this is a slippery slope. CA’s by their very nature are sovereign. What if one day they decide that instead of scrapping it, they would rather remain independent and sever all ties with India? What will you do then? War?
- Another argument is as silly as the one involving scrapping 35-A. It argues that let’s bring a constitutional amendment under Article 368 and delete Article 370. But this is as stupid as it can get. Article 370 itself says that no amendment under Article 368 is applicable to Jammu and Kashmir unless passed in concurrence with state assembly and there is no state assembly that will pass such an order. So, that’s not going to happen.
- Many argue that Article 370 was temporary only until 1956 when the CA was abolished and since they didn’t call for its removal, it is as permanent as the rest of the constitutional provisions.
The only way out of this mess is not through Judiciary or through cheap parliamentary efforts. The best effort is through talks. Nation-building is a process and has to be nurtured through patience. It can’t be bulldozed through the barrel of a gun or brute parliamentary majority. As Pratap Bhanu Mehta argued in the Indian Express,
“Politics must fix what politics broke. We can neither endure the historical patchwork we inherited, nor the means to go beyond it. The first task of statesmanship is to throw cold water, not fan the fires of polarisation. But it looks like Kashmir’s tragedy, oscillating between a heavy-booted state, and a destructive radicalism, will continue.”
The need is to initiate dialogue, not more heavy-handed military options or hastened parliamentary bill.
