Hello and welcome to Academacia, in this post we discuss What is article 370 of the Indian constitution. On 31st August 2018, the Supreme Court of India deferred the hearing of petitions challenging the constitutional validity of Article 35 A.The hearing is deferred till January 2019. Today let us look at all that you need to know regarding this very controversial article 35 A, as well as article 370 of the Constitution of India. What all are we going to cover today we’ll be providing you (A) With the historical background surrounding these two articles (history of article 370). (B) We’ll be looking at the Delhi agreement of 1952. (C) We’ll be looking at the grounds on which these petitions have been filed in the Supreme Court. (D) We’ll also be looking at whether Jammu and Kashmir is the only state in India which is provided with some sort of special treatment, by the Indian Constitution or are there other states in India as well which are provided with some special provisions by the Indian Constitution. (E) We’ll be looking at what happens if article 35 a is scrapped by the Supreme Court. (F) We’ll also be looking at how article 370 if at all can be deleted and then what is the way forward. (G) Article 370 advantages and disadvantages. (H) Who drafted article 370. (I) How article 370 can be removed. (J) Main points of article 370.
Explain Article 370 Constitution of India
Let us get started
There were more than 560 princely states in British India. These princely states were ruled by the princes that means these princely states were not directly controlled by the British Empire but these princes or their allegiance to the British crown. The partition plan was announced on June 1947 and it became clear that country shall now be divided into India and Pakistan but what will be the fate of these princely states. These princely states were provided with options either join India or join Pakistan or stay independent. As well some of these princely states joined in India some of them joined Pakistan.
Except for the princely state of Jammu and Kashmir. Jammu and Kashmir were then ruled by Maharaja Hari Singh and what Maharaja Hari Singh did he signed a standstill agreement with both India as well as Pakistan and made it clear that I am going to be equidistant from both India as well as Pakistan. I will neither join India nor will I join Pakistan but then the Indian Independence Act was passed in 1947 and what this Indian independence had done in one single stroke it ended the British rule over India. That means now India is an independent nation Pakistan is an independent nation and because of this Indian independence act all the relationships all the ties between the princely states and the British crown they also lapsed so in August 1947 when India was born as an independent nation when Pakistan was born as an independent nation.
Jammu and Kashmir also became an independent sovereign state but something else was also going on in Jammu and Kashmir a mighty popular movement was taking shape in Jammu and Kashmir and this movement was led by a very charismatic leader Sheikh Mohammed Abdullah. Sheikh Baba the Birla wanted to overthrow the monarchy of Maharaja Hari Singh and he wanted to establish a democratic socialist state of Jammu and Kashmir and Sheikh Mohammed Abdullah was in favour of Jammu and Kashmir becoming a part of India despite.
The fact that Jammu and Kashmir was a predominantly Muslim majority state and as expected Pakistan did not like this. When Pakistan did not like this Pakistan attacked Jammu and Kashmir. Pakistan violated the standstill agreement which she had signed with Maharaja Hari Singh and ultimately wanted to capture Jammu and Kashmir. Acquire Jammu and Kashmir through the use of force Maharaja Hari Singh at this point in time sought the help of Government of India but Lord Mountbatten, who was the governor-general of India at that point in time he made it clear that we are not going to help you and we can help you only if you accede to the Union of India .That means unless and until Maharaja Hari Singh signs an instrument of accession the Government of India can be of no help to the Jammu and Kashmir.
State Maharaja Hari Singh delayed after much back and forth much though ultimately he decided to sign this instrument of accession with the Government of India and Jammu and Kashmir became part of India. But let me tell you something more this instrument of accession which was signed by Maharaja Hari Singh with the Government of India, this was just like any other instrument of accession which was signed by other princely states with the Government of India.
That means all other princely states signed a similar instrument of accession with the Government of India but there was a difference all other princely states after signing an instrument of accession they also signed merger agreements with the Government of India. That means first they acceded to the Government of India to the state of India then further on they signed merger agreements and merged with the Union of India what is the difference when as princely state merges with the Union of India the princely state loses all its individual identity but Jammu and Kashmir only signed instrument of accession with the Government of India no merger agreement was signed between the government of Jammu and Kashmir and the government of India. On top of that this Instrument of Accession was conditional. As well when Maharaja Hari Singh signed this instrument of accession with the Government of India he only transferred three powers to the Parliament of India Defense, External Affairs and communication.
That means this instrument of accession made it clear that the government of Jammu and Kashmir is only transferring three powers to the Parliament of India. That means the Parliament of India will have the power to make laws only with respect to the defence only with respect to External Affairs only concerning communication regarding Jammu and Kashmir. On all other matters, it is the government of Jammu and Kashmir which will have the power to make laws the legislature of Jammu and Kashmir will have the power to make laws. This instrument of accession which was conditional was signed on 26th October 1947 and the very next day 27th October 1947 Indian army landed in Srinagar and the full-fledged war broke out between India and Pakistan.
The first of many such boards on Jammu and Kashmir, while all of this was going on Indian Prime Minister Pandit Nehru, approached the United Nations and shot the help of United Nations to end the war in Jammu and Kashmir because now Jammu and Kashmir have acceded to the Government of India. Pandit Nehru also persuaded Maharaja Hari Singh to give up his powers and transfer these powers to Sheikh Mohammed Abdullah and now Sheikh was appointed as the prime minister of Jammu and Kashmir. Now while all of this was going on, on one hand, we are seeing a war between India and Pakistan a full-fledged war, on the other hand, we are also seeing that Sheikh Mohammed Abdullah is appointed as the prime minister of Jammu and Kashmir.
We are also seeing that the Prime Minister of India has approached the United Nations seeking the help of the United Nations to end the war in Jammu and Kashmir United Nations. Then as it is today was controlled by the United States and the United States and Pakistan had very close relations with each other and what the United Nations did the United Nations called for a ceasefire.
That means the war in Jammu and Kashmir ended the war between India and Pakistan ended but United Nations Security Council passed another resolution and this time calling for a clever set or right to self-determination United Nations Security Council said there should be complete demilitarization. India should withdraw its troops from Jammu and Kashmir, Pakistan should withdraw its troops from Jammu and Kashmir let there be a vote let there be a pleb assent so that the people of Jammu and Kashmir should decide whether they want to accede to India or they want to accede and remember the year is 1948 when United Nations Security Council passes a resolution calling for Clemson and Jammu and Kashmir the year is 1948.
But in India something else is going on the Constituent Assembly is drafting and preparing its own constitution and on the other hand we are seeing United Nations is calling for demilitarization United Nations is calling for clevis it in Jammu and Kashmir. So while all of this was going on now the confusion was what will be the constitutional link between Jammu and Kashmir and the Union of India for five months this constitutional link was being debated what should be the relationship between the Union of India and the state of Jammu and Kashmir and then an article was given birth and that article became article 370 of Indian Constitution and this article 370 the title of this article is a temporary provision . Why temporary provision that till the time demilitarization has come in Jammu and Kashmir till the time Clarissa takes place in Jammu and Kashmir. What will be the relationship between India and the state of Jammu and Kashmir there has to be a temporary constitutional link and this temporary constitutional link will be article 370 of the Indian Constitution this is how article 370 was given birth.
Background and Provision
Now let us look at what this article 370 talks About article 370 says that Parliament of India will have the power to make laws on only those subjects which are mentioned in the Instrument of Accession and which are these subjects mentioned. In the Instrument of Accession defence, External Affairs and communication that means Parliament of India will have the power to make laws concerning the state of Jammu and Kashmir on only these three subjects and that true whenever Parliament will make a law on these three subjects concerning the state of Jammu and Kashmir. The government of Jammu and Kashmir shall be consulted but can other provisions of the Constitution of India. Apart from Defence, External Affairs and communication can these other provisions be also applied to the state of Jammu and Kashmir yes how a presidential order will be issued? That means the president of India will issue an order and one-by-one other provisions of the Indian Constitution can also be made applicable to the state of Jammu and Kashmir. That means apart from Defence, External Affairs and communication can other provisions of the Constitution be applied to the state of German Kashmir yes but how the president will issue an order but article 370 says presidential order cannot be issued without the concurrence of the government of Jammu and Kashmir. That means unless and until the government of Jammu and Kashmir gives its concurrence gives its permission no other provision of Indian Constitution can apply to the state of Jammu and Kashmir and if the government of Jammu and Kashmir gives the permission that president can issue an order and apply this provision to the state of Jammu and Kashmir. This decision of the government of Jammu and Kashmir needs to be ratified by the Constituent Assembly of Jammu and Kashmir now how did this Constituent Assembly of Jammu and Kashmir enter into the picture.
Let us look at the background when the United Nations called for a pleb asset called for the demilitarization of Jammu and Kashmir. Shaikh Mohammed Abdullah became the prime minister of Jammu and Kashmir. Pandit Nehru went to Srinagar to address the people of Jammu and Kashmir and said I am promising you club asset right to self-determination but when all of this was going on to give a signal to the rest of the world that we have not acquired Jammu and Kashmir through force.
We have not acquired Jammu and Kashmir only because one individual Maharaja Hari Singh signed an instrument of accession but this accession of Jammu and Kashmir with the Union of India is as per the will of the majority of the people of Jammu and Kashmir how to give the signal to the rest of the world. Shaikh Mohammed Abdullah gave a speech and in this speech he said we will have our own Constituent Assembly and our own Constituent Assembly will decide the future relationship between Jammu and Kashmir and the Union of India pundit narrow welcomed this idea and said now nobody is going to tell us that you have acquired Jammu and Kashmir through force or through conspiracy. Because when Jammu and Kashmir Constituent Assembly will be framed.
They will draft their own constitution, they will write their own relationship with the Union of India all the mouths will be shut and Jammu and Kashmir will become an integral part of India. That is why a Constituent Assembly of Jammu and Kashmir was drafted. That is why a constituent assembly’ of Jammu and Kashmir was given birth and all the people of this Constituent Assembly belonged to Jammu and Kashmir. National Conference headed by Sheikh Mohammed Abdullah so what is this article 370 article 370 says that power of the Parliament to make laws with respect to the state of Jammu and Kashmir is restricted to only three provisions Defence, External Affairs and communication can any other provision of Indian Constitution be applied to the state of Jammu and Kashmir ! yes but how president will issue an order when president will issue an order any other provision of Indian Constitution can be applied to the state of Jammu and Kashmir but presidential order cannot be issued unless and until the concurrence of the government of Jammu and Kashmir is sought and when government of Jammu and Kashmir will give the permission.
This decision of the government of Kashmir needs to be ratified by the Constituent Assembly of Jammu and Kashmir article 370 says one more thing. Any amendment of the Indian Constitution and you know the Constitution can be amended under Article 368 of the Indian Constitution. Any amendment of the Indian Constitution shall not automatically apply to the state of Jammu and Kashmir unless and until the government of Jammu and Kashmir agrees. That is why we saw recently when GST was imposed throughout the country it entered into force in Jammu and Kashmir only after a week why because the government of Jammu and Kashmir’s permission was to be sought without their concurrence no amendment to the Indian Constitution can automatically apply to the state of Jammu and Kashmir. This is what article 370 is all about and this is the background of article 370.
Why it was Incorporated?
You might be asking why this special treatment with the state of Jammu and Kashmir and this is exactly what Maulana Azad honey asked in the Constituent Assembly. Why this discrimination please let us know and it was to this question that Gopala swami young man who was the pointsman in drafting article 370 to the Indian Constitution he replies Kashmir unlike other princely states is not yet right for integration. India is at war with Pakistan / Jammu and Kashmir and although there is a ceasefire as of now the conditions are still unusual and abnormal there are still parts of our territory. which are under the control of our enemy state.
which is the Pakistan Gopala Swamy I anger also referred to something called entanglement. what is this entanglement that Gopala swami younger was referring to entanglement at the United Nations because United Nations had called for a plebiscite so Gopala swami anger says Kashmir problem needs to be satisfactorily resolved and then Jammu and Kashmir can become a fully-fledged? Indian state that is why the special treatment is given to Jammu and Kashmir but it is only temporary the will of the people through the instrument of the Constituent Assembly will determine the constitution of the state of Jammu and Kashmir as well as the Saffir of Union jurisdiction over the state of Jammu and Kashmir. this is the reply of Gopala swami younger to the Constituent Assembly when Mawlana Hazrat Mahana asked why this discrimination please explain to us well article 370 was drafted it made it care. that only two articles of indian constitution will be applicable to the state of Jammu and Kashmir which are these two articles article 1 and article 370 what is article 1 India that is Bharat shall be union of states and this phrase union of states includes the state of Jammu and Kashmir that may no other provision of Indian Constitution was made applicable to the state of Jammu and Kashmir except article 1 an article 370 of Indian Constitution that means this article 370 is the link between India and Jammu and Kashmir this article 370 is like a tunnel through which Indian Constitution can enter into Jammu and Kashmir now let us look at narrow Shaikh talks which ultimately resulted in the Delhi agreement of 1952 when the Constitution of India was enacted only two articles were made applicable to the state of Jammu and Kashmir .these articles were article 1 and article 370 what is article 1 India that is bharat shall be a union of states and this phrase union of states also includes the state of Jammu and Kashmir and the only other article apart from article 1 which will apply to the state of Jammu and Kashmir was article 370 and you know what this article 370 is all about but what about other provisions of Indian Constitution. how can they be made applicable to the state of Jammu and Kashmir because fundamental rights are not applicable directive principles are not applicable Supreme Court is not applicable Election Commission is not applicable can we make these provisions or these institutions apply to the state of Jammu and Kashmir for that dev or talks and these talks between prime minister Niro and Prime Minister Sheikh Mohammed Abdullah ultimately led to the Delhi agreement of 1952 and the result of this Delhi agreement was that there was an agreement that the national flag of India will have the same respect in Jammu and Kashmir as in other parts of India when apart from that Jammu and Kashmir will have its own flag as well and the status of this flag will be equal to the status of the Indian national flag the head of the state will be called as a theory asset and this salary asset will be elected by the legislature of Jammu and Kashmir. we will have a prime minister of India we will have a primary of Jammu and Kashmir’s ban on all these things there were agreements because of this Delhi agreement Supreme Court became applicable to the state of Jammu and Kashmir because of this Delhi agreement various provisions of the Indian Constitution were made applicable to the state of Jammu and Kashmir. they were also agreement on the state subject law of 1927 which was passed by Maharaja Hari Singh what was this law all about it was the policy of the Dogra ruler Maharaja Hari Singh to keep the Muslims of Jammu and Kashmir away from the government jobs and the beneficiaries of these government jobs.
were solely the Kashmiri Pandits then Kashmiri Pandits feared that people from Punjab can enter into Jammu and Kashmir and buy property in Jammu and Kashmir acquire land in Jammu and Kashmir be part of the government jobs in Jammu and Kashmir. then these Kashmiri Pandits petitioned Maharaja Hari Singh that please have a law so that Outsiders who are not from Jammu and Kashmir cannot buy property in Jammu and Kashmir cannot acquire land in Jammu and Kashmir cannot get government jobs in Jammu and Kashmir and Maharaja Hari Singh agreed and a state subject law was passed in 1927 which prohibited outsiders from acquiring land property and getting government jobs in Jammu and Kashmir but then the question arose will this state subject law even after Jammu and Kashmir has now become part of India with the state subject law continued or will it not continue on that there was an agreement that yes the state subject law will continue even after Jammu and Kashmir has now become part of India but then when these talks between pandit nehru and sheikh bomber of the love were going on the Kashmiri delegation asked the prime minister but how can you ensure that this state subject law continues in Kashmir because you have a chapter of fundamental rights under your Constitution and your chapter fundamental rights says article 14 there can be no discrimination amongst the citizens of India article 19 article 21.
How can you ensure that our state subject law will survive although in your fundamental rights chapter there can be no discrimination whatsoever Pandit Nehru said don’t worry. we will find a way of doing this but your state subject law will prevail and ultimately all these provisions were. then given shape and this led to the Delhi agreement of 1952 but when all of this was going on intelligence reports suggested that Sheikh Mohammed Abdullah might backtrack from these negotiations. he is not in a position or he does not want full integration of Jammu and Kashmir with the Union of India and this point in time prime minister of Jammu and Kashmir’s Sheikh Mohammed Abdullah is arrested and in his place Bakshi Ghulam Muhammad is sworn in as the prime minister of Jammu and Kashmir and now the Government of India renegotiates.
This agreement with Bakshi Ghulam Ahmad and then when this renegotiated agreement was to be implemented how can you implement this let’s not forget article 370 empowers the Parliament of India to make laws only with respect to defence, External Affairs, and communication can any other provision of Indian Constitution be made applicable to the state of Jammu and Kashmir yes but how through a presidential order. then a presidential order was passed and in 1954 the mother of all presidential orders on Jammu and Kashmir was issued by the President of India and this presidential order also introduced article 35 capital e to the Constitution of India. what article 35 a is all about this article 35 a is the same state subject law of 1927 this article 30 five capital e empowers the legislature of Jammu and Kashmir that you can decide and define who are the permanent residents of Jammu and Kashmir or in other words who are the citizens of Jammu and Kashmir once you have identified who are these permanent residents of the state of Jammu and Kashmir then you can confer on these individuals certain benefits certain privileges even if they violate fundamental rights mentioned under the Constitution of India and these benefits are no outsider who is not a permanent resident of Jammu and Kashmir no non-resident can acquire property in Jammu and Kashmir can buy land and Jammu and Kashmir can get government job in Jammu and Kashmir can get scholarship in Jammu and Kashmir can get aid in Jammu and Kashmir even if fundamental rights under article 14 are violated article 19 are violated article 21 are violated. this is what article 35 A talks about that means this article 35 A is nothing but the same state subject law. which was negotiated between Prime Minister Nehru and Bakshi Ghulam Ahmad and then it was applied to the state of Jammu and Kashmir through this presidential order of 1954 that means when we look at all of this Jammu and Kashmir was the only princely state which negotiated its terms of accession with the Union of India when this presidential order was passed in 1954 then in 1956 the Constituent Assembly of Jammu and Kashmir framed its own Constitution and this constitution of Jammu and Kashmir says Jammu and Kashmir is an integral part of India and when Constituent Assembly of Jammu and Kashmir drafted and framed and enacted. its own constitution this Constituent Assembly was abolished but then what was the current controversy after more than sixty years when this presidential order of 1954 was issued after more than 60 years the petitioners are challenging that article 35 a is unconstitutional .why is it unconstitutional to petitions one by Jammu and Kashmir’s Study Center and other by a group called the citizens they have filed a petition in the Supreme Court of India challenging the constitutional validity of article 35 capital a but on what grounds number one the petitioners say that Constitution of India can only be amended by Parliament that – under article 368 so when Constitution of India can be amended only by the Parliament under article 368 how can Constitution of India be amended by adding article 35 a that – not by the Parliament but by the President of India by issuing an order that is why 35 a is unconstitutional please deleted on second ground they say article 35 a is against the basic structure of Indian Constitution why because article 14 is getting violated which is part of the basic structure article 21 is getting violated which is part of the basic structure article 19 is getting violated. which is part of the basic structure that is why 35 should be declared unconstitutional. they also say that article 35 a is violative of the rights of the women and that is why it should be declared unconstitutional I’ll come to this point slightly later.
J&K is the only state in India which is provided with some sort of special treatment
Jammu and Kashmir. the only state in India which has some special provisions guaranteed by the Constitution no article 371 A. this provision was inserted in 1962 and it deals with Nagaland and this provision makes it clear that Parliament of India does not have the power to make laws regarding the ownership and transfer of land and Nagaland and the resources of Nagaland. this is similar to 35 a 371 G similar in case of and no act of parliament in respect to the ownership and transfer of land shall apply to the state of Missouri unless. the Legislative Assembly of Missouri am by a resolution so decides that’s not the end of the story Assam Manipur. Andhra Pradesh Sikkim or natural Pradesh Goa they have similar provisions under article 371 of Indian Constitution let’s not forget Himachal Pradesh where you cannot buy the agricultural land no outsider can buy an agricultural land in Himachal Pradesh let’s also not forget article 371 capital J what is this article six backward districts of Hyderabad Carnatic region if you are a resident of these six districts there is a reservation for you in government jobs but remember my dear friends there exists article 16 of Indian Constitution. which says there can be no discrimination on the grounds of residence while dealing with public employment this article 16 is getting violated by article 371 capital G but we don’t see people talking about article 371 capital G because there is a special provision for the six backward districts of Hyderabad in Karnataka and this provision was passed as recently as 2012 not just in India look at the position globally Britain has conferred special status and autonomy on Scotland and Wales special status for Northern Ireland look at Hong Kong is part of China but China administers Hong Kong under a system called one country two systems separate system for the administration of Hong Kong look at cubic in Canada separate autonomous character that means Indian Constitution.It doesn’t favor symmetric federalism it favors is symmetric federalism what are we talking about in federalism there are two constituents there is center there are states is it necessary that the center has to treat. All states equally or can Center treat some of the states differently and other states differently if the center has to treat all states equally then we are in symmetric federalism but the Indian Constitution does not believe in this Indian Constitution believes in symmetric federalism that means Center will treat different states differently. that is why we have 374 Jammu and Kashmir 35 a for Jammu and Kashmir 371 for Goa Maharashtra Assam Himachal Money pools so on and so forth this is the crux of our Constitution we believe in asymmetric federalism and not symmetric federalism.
What is Article 35-A
But now let me take you back to article 35 capitally if you look at the first part of my lecture I’m talking about myth versus reality let’s look at the reality of article 35 capital a the PV debates today are mostly focusing upon that Jammu and Kashmir has been provided with special treatment special provision under article 370 and 35 capital A of the Constitution what they do not understand that article 35A and article 370 is not a special treatment for Jammu and Kashmir these two provisions do not confirm or autonomy to the state of Jammu and Kashmir no, in fact, the reality is article 370 presidential order of 1954 they suck away the autonomy of Jammu and Kashmir initially only on matters related to defence External Affairs and communication could Parliament of India have framed laws for the state of Jammu and Kashmir. now what presidential order of 1954 has done Election Commission of India applicable to state of Jammu and Kashmir fundamental rights applicable to the state of Jammu and Kashmir CAG applicable to the state of Jammu and Kashmir UPSC all India services applicable to the state of Jammu and Kashmir Finance Commission applicable to the state of Jammu and Kashmir as a recent GST applicable to the state of Jammu and Kashmir. that means this presidential order of 1954 has been amended multiple times modified multiple times one modification was sadly the acid nomenclature is changed into governor another modification was Prime Minister is replaced by Chief Minister another modification was to the presidential order of 1954 that from now onwards Jammu and Kashmir assembly does not have the power to amend the constitution of Jammu and Kashmir so this presidential order of 1954 is not a special provision for German cash wield in fact this is a provision which has taken away the autonomy of Jammu and Kashmir and only one small part of this presidential order was article 35 capital an in fact when the presidential order of 1954 which also introduced article 35 a to the Indian Constitution. when it was introduced in 1954 there was a celebration in India this presidential order was celebrated because through this presidential order integration of Jammu and Kashmir with the Union of India has become possible in fact the Hindu right-wing at that point in times also celebrated this presidential order and it is because of this presidential order that financial integration of Jammu and Kashmir with the Union of India became possible.
Article 370 Gives Us Special Status To Jammu and Kashmir
There are people who say article 370 gives us special status to Jammu and Kashmir I’ll tell you what that special status is under article 356. President’s rule can be imposed in any state in India on what grounds that there is breakdown of constitutional machinery in that state impose President’s rule but what is the maximum validity of that President’s rule three years President’s rule cannot continue in any Indian state for more than three years and when it was imposed for more than three years in Punjab Constitution was amended it that means if you have to extend President’s rule in any Indian state beyond a period of three years for that you have to amend the Constitution an amendment of the Constitution requires 2/3 majority special majority which is very difficult to achieve but in case of Jammu and Kashmir you don’t have to amend the Constitution if you have to impose President’s rule in Jammu and Kashmir beyond a period of three years all the government has to do president will issue an order and President’s rule will continue in the state of Jammu and Kashmir and for seven years it continued in the state of Jammu and Kashmir and no amendment of Indian Constitution was required so under the Indian scheme of things.
What is the status of Jammu and Kashmir we can say that the status of German Kashmir is slightly more than Bihar which is a fully integrated Indian state and less than Bhutan where India has some control but Bhutan is sovereign please understand one thing because of the limited nature of Accession conditional accession between India and Jammu and Kashmir there was a very very weak link between India and the state of Jammu and Kashmir it is because of this weak link that Sheikh Mahmoud Abdullah became the prime minister of the state it is because of this weak link that state had its own Constituent Assembly and flag it is because of this weak link that they were customs checks between India and the state of Jammu and Kashmir Supreme Court had no role in the state of Jammu and Kashmir Kashmir militia was constituted as a separate force it is because of this weak link that sarena got tried to send its own trade commissioners to foreign countries but this weak link was strengthened by whom by presidential order of 1954 of which 35 a is an integral part of it is this presidential order that has brought Jammu and Kashmir closer to the Union of India now let’s look at something else is it for the first time that article 370 or article 35 a has been challenged in the Supreme Court no brain not coal was the state of Jammu and Kashmir in 1959 the first challenge but Prakash versus state of Jammu and Kashmir in 1969 another challenge State Bank of India versus Santosh Gupta 2016 another challenge. what is the combined message of all these three verdicts number one Supreme Court made it abundantly clear that the president can issue an order under Article 370 only and only with the concurrence of the state of Jammu and Kashmir? what is another implication Supreme Court made it clear that article 370 has never ceased to operate it continues to operate and there can be no challenge on this ground to any order which is passed by the president that means Supreme Court judgment in 1969 made it clear? that presidential order under article 370 is constitutional and nobody can challenge this and the last vertex in 2016 in State Bank of India case Supreme Court made it clear that presidential order can enlarge or extend the provisions of the Constitution of India in its application to the state of Jammu and Kashmir and that is what this presidential order is all about to let me tell you something else and this is the argument given by a gene Irani one of the most well-known commentators on article 370 a constitutional expert please look at this carefully this is slightly technical but if you understand this you are going to understand the crux of article 370 a gene Irani says initially only defence External Affairs and communication only these three powers were given to the Parliament of India can other provisions of Indian Constitution apply to the state of Jammu and Kashmir yes how president has to issue an order but president can issue. this order only with the concurrence of the state government and state government when they give permission. they have to place this decision before the Constituent Assembly and it is only when the cause to joint assembly ratified the decision of the state government can those provisions apply to the state of Jammu and Kashmir but when was Constituent Assembly abolished of Jammu and Kashmir 1956 and all changes that were made all these presidential orders. that were issued from 1954 on words because 1954 was one order this presidential order was amended and modified multiple times and through multiple modifications other provisions of Indian Constitution were made applicable to the state of Jammu and Kashmir but only after the Constituent Assembly was abolished that means to age in Irani makes a point that all these changes that have been made all those provisions that have been made applicable to the state of Jammu and Kashmir they are all unconstitutional. what is the crux of the argument of AG Noorani AG Noorani says any provision of Indian Constitution which was made applicable to the state of Jammu and Kashmir till 1956 they are constitutional any change made after 1956 is unconstitutional because there was no Constituent Assembly of Jammu and Kashmir that means when the nomenclature was changed from Siderius otto governor from prime minister to chief minister when supreme court was made applicable to the state of Jammu and Kashmir Election Commission all these are unconstitutional in the eyes of a gene irani this is a very very tricky point here let’s look at something else petitioners, in this case, are arguing that 35A violates the basic structure and that is why it should be declared unconstitutional this argument is very silly why article 35 a was added to the Constitution by a presidential order of 1954 clear this presidential order of 1954 was issued under article 370 of Indian Constitution but this basic structure doctrine 23rd April 1973 a 13 judge bench of the Supreme Court in case of Ananda Bharti vs. state of Kerala said that power of the Parliament to amend the Constitution under article 368 is not unlimited Parliament cannot amend any provision of the Constitution if it violates the basic structure but that means if you look at this in slight detail basic structure applies when Parliament amends the Constitution under article 368 this logic of basic structure does not apply to article 370 basic structure doctrine applies only to article 368 it does not apply to article 370 so this argument is invalid there is a myth that if I am a permanent resident of Jammu and Kashmir and I am a woman and if I marry an outsider. if I marry a non-resident of Jammu and Kashmir I lose my permanent resident status this is a complete myth woman of Jammu and Kashmir marrying an outsider still remains the permanent president of Jammu and Kashmir her permanent resident status is not discarded is not deleted at all so this is a myth that has been perpetrated.
What Will Happen if Article 35 Capital a is Scrapped
Now let’s look at what will happen if article 35 capital a is scrapped based on my limited understanding 35 a cannot be scrapped. why because previous judgments of the Supreme Court have made it clear that president has the power to issue an order with respect to the state of Jammu and Kashmir under Article 370 of Indian Constitution and one such order talked about 35 a and even if it’s scrapped let’s look at the implications implication number one yes there will be turmoil chaos in Jammu and Kashmir we will witness another round of protests may be bloodier protests than 2016 2010 yes that is a given thing that will happen but 35 A. if it is crap on what grounds will it be ascribed that president does not have the power to issue an order with respect to the state of Jammu and Kashmir if this presidential order is scrapped. that means all other orders issued by the president under this presidential order of 1954 will also cease that means we will go back to 1954 and the relationship of Jammu and Kashmir with Union of India as it stood in 1954 the status will reverse back to 1954 that means we are setting the clock back that means if we are going back to 1954 then the status will be Supreme Court is not applicable to Jammu and Kashmir Election Commission is not applicable to Jammu and Kashmir CAG UPSC finance Commission not applicable to state of Jammu and Kashmir Chief Minister will be replaced by Prime Minister governor will be replaced by Siderius odd that is going to be very very scary for the whole project of India’s integration with the state of Jammu and Kashmir then the question that must be on your mind is what then is this article 35 a petition is it constitutional petition or is it a political petition one argument given by the petitioners is that after the partition of India. millions of people migrated from Pakistan to India and these lakhs of people also settled in Jammu and Kashmir but because of 35a these refugees from Pakistan who entered into Java in Kashmir they are denied permanent resident status they are denied jobs denied scholarships denied right to acquire property right to acquire land so on and so forth since it violates the fundamental rights that is why 35a should go so that these refugees who came from Pakistan should be provided with the citizenship status perfect but then have you heard of something called national registry in Assam people from Bangladesh entered into SM now the Supreme Court has mandated that we will have a national registry of citizens in Assam and all those illegal immigrants who came from Bangladesh who is not the real residents of Assam or India they will be thrown out of national registry of citizens and in fact 40 lakhs such people do not find their names in national registry of citizens so in Assam you are throwing illegal immigrants out in Jammu and Kashmir you are asking these refugees to come and be part of Jammu and Kashmir this is political hypocrisy, to say the least, there are critics were saying that the real purpose of this petition is so that when 35A is scrapped Outsiders can acquire land in Jammu and Kashmir by property in German cash will get voting rights in Jammu and Kashmir and because of that what you’re trying to do you are trying to alter the demography of the state of Jammu and Kashmir this is what people in Jammu and Kashmir are objecting to particularly the people in the valley.
Article 370-A Can be Deleted
Now let us look at article 370 and how article 370 can be deleted article 370 as I said the title of article 370 is that it is a provisional or a temporary provision under the Constitution of India and how can this article 370 be deleted president will issue an order article 370 will be deleted simple presidential order is assured article 370 is deleted but article 370 itself says that president cannot issue this order without the concurrence of the Constituent Assembly of Jammu and Kashmir that means to delete article 370 which is a temporary provision all you need to do president will issue an order and article 370 will be deleted but President of India cannot issue this order without the concurrence of the Constituent Assembly of Jammu and Kashmir now one side of the argument is there is no Constituent Assembly of Jammu and Kashmir so we don’t need to seek the permission of the Constituent. Assembly of Jammu and Kashmir because it is not present so there President of India please issue an order and delete article 370 that’s one argument second argument says since the permission or the concurrence of the Constituent Assembly of Jammu and Kashmir is necessary if you want to delete article 370 what you have to do you have to create a Constituent Assembly and then this new Constituent Assembly should recommend to the president please delete article 370. then only article 370 can be deleted but now you will be asking me why is it that a new Constituent Assembly is not being drafted for Jammu and Kashmir but please understand Constituent Assembly is by their very nature of sovereign what if tomorrow our Constituent Assembly is drafted for Jammu and Kashmir and it gives a statement and says we have given to ourselves this Constitution and we are a sovereign socialist secular democratic Republic of Jammu and Kashmir and they will say where all ties with the Union of India and declare independence there is the third argument says article 370 was temporary only till 1956 that means it was temporary till 1956 when we had a Constituent Assembly of Jammu and Kashmir when Constituent Assembly of Jammu and Kashmir was abolished and before their Abolishing. they did not recommend the deletion of article 370 this temporary provision of the Indian Constitution has now become permanent and this article 370 is as good as part of the basic structure of the Indian Constitution there is a fourth argument is that let’s not take the route of the presidential order. let’s not ask the President to issue an order and delete article 370 what we can do we can pass a law under article 368 that is how we amend the Constitution and through this law under article 368 370 should be deleted but then this is a very silly argument why article 370. itself states no amendment to the Indian Constitution can automatically apply to the state of Jammu and Kashmir unless and until the government of Jammu and Kashmir accepts which government and Jammu and Kashmir will accept a constitutional amendment calling for the deletion of article 370 that means article 370 is beyond repeal it cannot be abrogated it cannot be deleted but then what is the way forward nation-building is a project and it’s a continuous project and in this nation-building there can be given takes in this nation-building there should be series of discussions there should be series of debates and there should be series of negotiations and renegotiations as well if you want to delete article 35 a if you want to delete article 370 it should not be through the route of judiciary it should be through a political process what politics has broken politics alone should fix that that’s what Pratap bono Mehta one of the brilliant minds in India writes he says we can neither end or the historical patchwork we inherited not the means to go beyond it the first task of statesmanship is to throw cold water not fan the fires of polarization what Pratap bono Mehta is talking about he says that the challenge to article 35 a should not be decided by the Preem court but should be decided through a political process where the government of India should negotiate with the people of Jammu and Kashmir and then suitably decide what is going to be the future of the relationship of Jammu and Kashmir with the Union of India but prathab on Amata at the end is also a skeptic is also a pessimist he writes but it looks like Kashmir tragedy which was oscillating between a heavy booted state and a destructive radicalism will continue that’s the sad state of affairs so at the end of this lecture let’s recapitulate all that we discussed we talked about the historical background surrounding 35a and article 370 we discussed the Delhi agreement of 1952 we talked about other states which have similar provisions as that of Jammu and Kashmir.
Thanks for Reading.
We also talked about how article 370 can be deleted, we talked about if 35A is deleted what is going to happen and we also talked about the way forward. If you have any other questions please drop in your comments in the comment section.