Scraping of Articles 370 & 35A. How, When and What?

In 1957, Kashmir was formally incorporated into the Indian Union. It was granted a special status under Article 370 of India's constitution.

According to Indian constitution, only Article 1 & 370 are applicable on State of J&K. As a consequence of Article 370, Article 35A was introduced and applied by the president.

The Shadow Constitution:

There is an Indian Constitution which is applicable on all of India & there is its shadow self which is applicable only& exclusively on Jammu &Kashmir. This Shadow self of constitution refers to Article 35A. Article 35A was inserted through a special Presidential order, neither debated in constituent assembly, nor approved by the parliament. Art. 35A cannot be found in the text of Constitution of India.

35A does not form part of the Indian constitution, but is part of Indian constitution as is applied to J&K.

  • Main feature of Article 370:-
    • Indian Parliament cannot make any law without the consent of state Assembly
    • Jammu Kashmir has its own flag and constitution
    • President rule cannot be proclaimed in that state Only Governor rule can be. Imposed
    • Jammu Kashmir has its own Criminal code as well.
    • Except for Defense, Foreign Affairs, Finance and Communications, the Indian Government needs the State Government’s nod to apply all other laws.
    • The central govt. has no power to impose financial emergency in the state. Emergency can be imposed only on the grounds of internal disturbances and imminent danger from a foreign enemy.
    • Therefore, the state government has the control on how it needs to govern the state without worrying about the consent of the central government.
    • Due to this article, Indian nationals belonging to other states cannot buy land or property in the state of J&K.
  • Clause 1 of Article 370 provides that President, in concurrence with government of State (J&K) has power to make certain orders.
  • In pursuance of this provision , Article 35A has been added by Special Presidentialorder, “The Constitution (Application to Jammu & Kashmir) Order, 1954”. It has not been voted upon by the constituent assembly, and hence, it is not found in the text of Constitution of India.

Main Features of Article 35A

Both of the Articles have been source of public outrage & there has been a cry for their repeal. What had been stopping the governments from repealing the provisions, even after so many years of independence? Lets find ut.

Hurdles in removal:

  • Article 370 provides for its removal itself. Clause 3 states that the President cease the operation of this article, if the Constituent Assembly of J&K so recommends.
    The condition is essential and is also a hindrance. The Constituent Assembly of J&K was constituted in 1956, which drafted a separate constitution for J&K. with its work done, at present, no such constituent assembly exists.

If there is no constituent assembly, who will recommend removal of Article 370?

  • Prior to insertion of Article 35A, the Governor and the Chief Minister of Jammu and Kashmir were addressed as the Sadr-e-Riyasat (President) and Wazir-e-Azam (Prime Minister).
    Repeal of the article would lead back to the same arrangement, there has been no other arrangement.

 

How has the Government moved to remove Article 370 & 35A ?

Under the same Clause (1) of Article 370, a Presidential order, “The Constitution (Application to Jammu & Kashmir)Order, 2019” has been issued.  I contains Two points, lets understand them one by one:

Point 2: Point 2 of the Order has made some additions in Article 367 of the Constitution.

Article 367 provides for interpretation of the constitution. Clause 4 has been added to this Article. Lets look at the provisions one by one:

  1. Article 367 (4)(a) reads as “references to this constitution or the provisions thereof shall be construed as the references to the Constitutions or the provisions as applied in relations of the said State:”

What does it mean?
It means that this provision being added is a part of that shadow self of the constitution which is exclusively applicable to Jammu & Kashmir. Since the law being made or changed is about Jammu & Kashmir, it does not requires procedures as are required for other constitutional amendment.

Did the State of J&K agree? Such order cannot be made without concurrence of the State of J&K. Right now, J&K is under President’s Rule and the Legislative Assembly is not functional. We can conclude that such concurrence was given by the Governor.

  1. Article 367 (4)(b) reads as “References to the person for time being recognized by the President on the recommendation of the Legislative assembly of the State as the Sadr e Riyasat of Jammu & Kashmir, acting on the advice of council of ministers of the State for the time being in office, shall be construed as the references to the Governor of the Jammu &Kashmir.”

What does it mean?: It means that once 35A is removed, the term “Sadr e Riyasat” would come to mean the Governor of the State, and not a President as was pre-Art. 35a arrangement.

  1. Article 367 (4)(c): “Reference to the Government of the same State shall be construed as including the references to the Governor of Jammu & Kashmir, acting on advice of his Council of Ministers.

What does it mean: Its another clarification for interpreting “Concurrence of Government of State” as provided in Article 370.  It is clarified that the Government of State would mean the Governor acting on advice of Council of Ministers.

Since Center’s rule is applicable in J&K right now, there exists no Council of Ministers. Now, either the council needs to be established through elections or article 370 can be amended to do away with provision of “Concurrence of Government of State”

  1. Article 367 (4)(d): “in proviso to clause (3) of Article 370 of this Constitution, the expression Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.

What does it mean?: The Constituent Assembly whose recommendation was required for scraping of Art. 370 does not exists today. Therefore, this provision has been added to substitute “Constituent Assembly” with “Legislative Assembly”.

Point 1:Point 1 of notification mentions that The Constitution (Application to Jammu & Kashmir)Order, 2019 replaces The Constitution (Application to Jammu & Kashmir)Order, 1954.

It is noteworthy that Article 35A & the separate constitution for J&K was framed under the aegis of The Constitution (Application to Jammu & Kashmir)Order, 1954. Now, that 1954 Order is gone, so is Article 35A & the separate constitution of J&K.

Way ahead:

The Presidential Order of 2019 is just the first step with removal of Article 35A. There is a need for recommendation by the State Legislative Assembly for removal of Article 370.

Complete removal of Article would curtail Center’s power only to the areas of Defence, External Affairs & Communications. Therefore, clause 1, which provides for power of the Union government to administer various aspect, needs to be preserved. For that matter, it is being proposed to repeal all provisions of article 370 except clause 1.

Removal of J&K Constitution has brought the state under provisions of Article 1&2 and therefore, the center now has powers to change its boundaries.
In regards with that, Jammu Kashmir Reorganisation Bill, 2019 has been presented in the Rajya Sabha. It proposes to divide the state in 3 Union territories viz. Jammu, Kashmir & Ladakh.

It remains a question of future whether the Act is passed in the Parliament or not.

See the video below-
 

 


Posted On: 05 Aug 2019 Home / Legal / Scraping of Articles 370 & 35A. How, When and What?