ABROGATION OF ARTICLE 370 AND 35-A
“Just living is not enough… One must have sunshine freedom and little flower. ”
Freedom of states was always a controversy. There were total of about 565 princely
states in India. Long year ago India made a tryst with destiny and the British paramountcy
lampsed at the stroke of midnight on 15 August 1947. In the year of 1947, India was divided
into two dominions (India and Pakistan) by Indian Independence Act 1947 passed by British
House of Commons. Under the partition plan provided by Indian Independence Act the rulers
of these princely states were given option either to join India or Pakistan or to stay
independent. Mostly all the princely states joined either India or Pakistan. Only 3 states were
there who didn’t took any decision before Independence. Those states were Junagadh,
Hyderabad and Jammu and Kashmir. Firstly talking about Junagadh, the ruler of Junagadh
was Muslim and major population was Hindu. The ruler on 15 September, 1947 signed the
Instrument of accession with Pakistan. Indians took stand against this move of the ruler of
Junagadh and the whole population of Junagadh also protested against him due to which the
ruler fled to Pakistan. Observing the unorganized scenario government decided to have
plebiscite to decide which country should get control over Junagadh and about 99% of the
votes were in favor of India. Similar to Junagadh vice versa condition was in Kashmir as there
was Hindu ruler and Muslim majority. Secondly talking about Hyderabad, when Indian
leaders talked to the ruler of Hyderabad for his decision, the ruler on November 1947 signed
on a standstill agreement. Thirdly talking about Kashmir, the issue of Kashmir was the
biggest and the most controversial one. Kashmir, since 1947, was always at the center of
decades of tense ties between India and Pakistan.
Kashmir has always been more than a mere place. It has the quality of an experience,
or a state of a mind or perhaps an ideal. As historical legacy, the Kashmir conflict has been an
outstanding issue for more than half a century. The ruler of Jammu and Kashmir Maharaja
Hari Singh also did not exercised the option given in the partition plan to either join India or
Pakistan. Pakistan evaded Kashmir from North with an army of about 10,000 of tribal pathans
from Vagiristan. That time Maharaja of Kashmir appealed to India for help. Indian Governor
General, Lord Mountbatten, asked Hari Singh firstly to sign the Instrument of Accession then
only he will be provided any help. On 26th October, 1947 Hari Singh fled from Srinagar to
Jammu and there he signed the Instrument of Accession. Mountbatten signed that treaty on 27
October and thus the Accession was completed on 27th October and then after that Indian
army fled to Srinagar to help and stop Pakistan army to move further.
During the war Nehru filed a complaint under chapter 6 of United Nations Security Council
on 31st December 1947. In reply to this complain United Nations passed the resolution which
can be divided in 3 parts, 1st was cease fire order to stop the war and draw a line of control,
and following the order war ended on 31st December 1948 and Line of Control was formed
which led to the formation of Pakistan occupied Kashmir. 2nd part was a Truce Agreement
which was in India’s favor. It said that, as presently at that time Pakistan army was there in
Jammu and Kashmir firstly they will remove there army along with the people of Pakistan
who occupied Jammu and Kashmir during war. 3rd part contained issues like the how the
matter of Jammu and Kashmir will be soughted between India and Pakistan. Both the
countries agreed that it depends on the people of Jammu and Kashmir which of the two
dominion they wanted to join.
Now in order to make provisions for Jammu and Kashmir a meeting was held in 1949, in
which Sheikh Abdullah, Vallabh Bhai Patel and Jawahar Lal Nehru met which is formally
known as Delhi Understanding. It was decided in the meeting that 4 people from Jammu and
Kashmir will become member of Constituent Assembly namely Sheikh Abdullah, Mirza
Afzal Beg, Masoodi and the only Hindu Moti Ram Badga. Constituent Assembly drafted
Article 306 clause (A) which later became article 370 which was a temporary setup for the
functioning of Jammu and Kashmir till the formation of a Constitution for the people of
Jammu and Kashmir.
In 1950 by First Presidential Order a Constituent Assembly for framing a Constitution for
the people of Jammu and Kashmir was made. While framing of Constitution was under
process, Karn Singh after controversy became Sadar-e-Riyasat in place of his father Hari
Singh. Article 35(A) was incorporated based on the 1952 Delhi Agreement between Prime
Minister of India Nehru and Prime Minister of Jammu and Kashmir Sheikh Abdullah.
Article 370
According to the instrument of accession signed on 26 October 1947, the state surrendered
only three subjects (defence, external affairs and communication) to the dominion of India. At
that time, the Government of India made a commitment that the people of this state, through
their own Constituent Assembly, would determine the Internal Constitution of this state, and
until the decision of the Constituent Assembly of the state, the Constitution of India could
provide an interim arrangement regarding the state. 1 In pursuance to this commitment, Article
1
D D Basu, Commentary on the constitution of India, Prentice-Hall, Vol. V, 5th edition, 1970, p. 512.
370 was incorporated in the Constitution of India. It clearly states that the provisions with
respect to state of Jammu and Kashmir are only temporary and not permanent. Article 370
became operative on 17th November, 1952.
Article 370:- Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything contained in this Constitution,—
(a) The provisions of article 238 shall not apply now in relation to the state of Jammu and
Kashmir;
(b) The power of Parliament to make laws for the said state shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with the
Government of the State, are declared by the President to correspond to matters specified in
the Instrument of Accession governing the accession of the State to the Dominion of India as
the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) Such other matters in the said Lists as, with the concurrence of the Government of the
State, the President may by order specify.
Explanation : For the purpose of this article, the Government of the State means the person for
the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on
the advice of the Council of Ministers for the time being in office under the Maharaja's
Proclamation dated the fifth day of March, 1948;
Explanation: For the purpose of this article, the Government of the State means the person for
the time being recognized by the President on the recommendation of the Legislative
Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting
on the advice of the Council of Ministers of the State for the time being in office.
(c) The provisions of article 1 and of this article shall apply in relation to that State;
(d) Such of the other provisions of this Constitution shall apply in relation to that State subject
to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of
Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in
consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the
last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-
clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given
before the Constituent Assembly for the purpose of framing the Constitution of the State is
convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by
public notification, declare that this article shall cease to be operative or shall be operative
only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in
clause (2) shall be necessary before the President issues such a notification.2
Article 35(A)
This article was given by Presidential Ordinance of 1954 and not through a Constitutional
Amendment under Article 368. Article 35(A) gave special rights to citizen of Jammu and
Kashmir. This article allowed state legislature to define Jammu and Kashmir’s permanent
resident. It gives right only to permanent resident to buy property in Jammu and Kashmir or
get employment or any kind of aid from there. Earlier, if women of Jammu and Kashmir
married outside, then their children won’t get status of permanent resident but if man does the
same his children will get the status of the permanent resident. So earlier inequality was there
on the basis of gender but later this was amended in the year 2002 and after that women also
got the equal rights and their children would also be considered as a permanent resident if
they married outside but till present date on practical basis this amendment is not followed
yet.
SCRAPPING OF ARTICLE 370
2
Laxmikanth, M., Indian Polity, 4th edition.
The repealing of article 370 of the Constitution has been a poll promise of the BJP. The BJP
has been contradicting the special status for Jammu & Kashmir since long. It had earlier
claimed that it could not repeal the Article 370 during Vajpayee government due to lack of
majority. The BJP has been opposing it since its earlier avatar Jan Sangh days. Dealing with
Article 370 in the chapter on Jammu and Kashmir, the BJP manifesto said "the BJP reiterates
its stand on the Constitution provision and will discuss this with all stakeholders and remains
committed to the abrogation of this article."
Amit Shah introduced the Jammu and Kashmir Reorganisation Bill in Rajya Sabha that
scrapped Article 370 and Article 35(A) on 5th of August 2019 with 125 were in favour and 61
in against and it was passed in Lok Sabha the latter day by 370 votes in favour and 70 against
it and finally on 7th August 2019 it got Presidential assent and got abrogated.
Abrogation of article 370 though done in a very short span but when observing the acts of the
government it seems to like a well-planned strategy on which government must be working
since two or three years. It can be noticed from the date of appointment of Satya Pal Malik as
a governor of Jammu and Kashmir. Then in 20th June 2018 he implemented Governor’s Rule
on recommendation of President by section 92 of Jammu and Kashmir constitution. On 21st
November 2018 Jammu and Kashmir Legislative Assembly was dissolved. Then on 19th
December 2018 emergency was implemented on basis of article 356 and according to article
356(1)b says that the powers of the legislature of the state shall be exercisable by or under the
authority of Parliament. As Legislative Assembly is dissolved Parliament can make laws till it
is dissolved.
On 5th August 2019 Amit Shah presented the first notification which made changes in article
370(1) (d) and laid down the following points:
(a) the provisions of The Constitution (Application to Jammu and Kashmir) order 2019 will
supersede the orders passed in 1954 which was being amended from time to time. This
resulted in revocation of article 35-A.
(b) all the provisions of Indian constitution will also be applicable in Jammu and Kashmir.
(c) Only few exceptions will be there which were inserted and changed under article 367.
Earlier only 3 clauses were there and 1 new clause was added by this order i.e. clause 4
which said that :
(i) Constitution means constitution as applicable to Jammu and Kashmir.
(ii) Governor working on advice of Council of Ministers means Governor only.
(iii) Jammu and Kashmir Government means Governor only.
(iv) Constituent Assembly in article 370(3) means Legislative Assembly.
The above changes were made by the first notification which helped in passing of bill of
abrogation of Article 370. This was the first step for the process of abrogation which resulted
in revocation of article 35-A.
After this, 2 resolutions were presented, and they were to be presented and passed at the same
time because they were interrelated.
In resolution article 370 was abrogated and all the sub-clauses were removed and one new
paragraph was added which is as follows:
“All provisions of this constitution as amended from time to time without any modifications
or exceptions, shall apply to the state of Jammu and Kashmir notwithstanding anything
contrary contained in article 152 or article 308 or any other article in this constitution or any
other provision of the constitution of Jammu and Kashmir or any law, document, judgement,
ordinance, order, by law, rule, revolution, notification, custom or usage having the force of
law in the territory of India, or any other instrument, treaty, or agreement as envisaged under
article 363 or otherwise.”
Now from resolution it is clear that constitution of India will be applicable to Jammu and
Kashmir thereby article 3 of Indian Constitution will also be applicable to it.
It made passage for the presentation of Jammu and Kashmir reorganisation bill 2019. Finally,
after the passing of Jammu and Kashmir reorganisation bill 2019, special status of Jammu and
Kashmir came to an end.
KEY FEATURES OF THE BILL:
The bill reorganised Jammu and Kashmir into 2 parts, one is Union Territory of
Jammu and Kashmir with legislation and the other is union territory of Ladakh without
legislation.
Jammu and Kashmir will be administered by President through administrator
appointed by him as Lieutenant Government.
Total number of seats in Legislative Assembly are 107which will be for term of 5
years and the Legislative council got abolished.
Union Territory of Jammu and Kashmir will have Council of Ministers of not more
than 10% of total number of members in the Assembly.
High Court of Jammu and Kashmir will be common for both the Union Territories.
Views in favor of abrogation of article 370
Feeling of one nation through single citizenship.
Now government of India will have better control over Jammu and Kashmir so
it will curb terrorism.
Article 370 was discriminating on the basis of gender, class and place of
origin.
Now fundamental rights will be applicable.
Right to education will be applicable now.
Now better quality of professor and other professional workers can be hired
from anywhere.
Monopoly of business will decline as more industries would be set up in the
valley.
Now anti-corruption agency and RTI will be applicable in Jammu and
Kashmir. Jammu and Kashmir contains about 1% of population of India and
central fund expenditure is about 10% still no development is there. From the
data we can imagine the rate of corruption in that state.
CONCLUSION
It is a herculean task and the historic move by the BJP Government. It is a step towards
unification which always has a positive effect. The abrogation of article 370 is depicting the
proper step towards reorganization of our Country which should have been taken years
before. Our Prime Minister Narendra Modi said that “ARTICLE 370 DID NOT GAVE
ANYTHING EXCEPT SEPERATISM”, so finally his Government abrogated it. Though the
process of abrogation was sudden but after reading of Article 118,122 and 255 of Indian
Constitution it is tough to challenge it on the basis of procedure. Some are calling it
unconstitutional on basis of federalism and some are having there other point of view but it is
now upon our Supreme Court to finally decide its Constitutionality. Now time will tell the
fate of the newly developed union territories which will be decided by the reaction of the
people living there but presently it seems to be a positive action for the better development of
the nation and the people living there.
