Special Status of J&K - Removal of Articles 370 & 35A of Indian Constitution

Abrogating Article 370 was no easy feat; the Indian government had to master "Saam, Daam, Dand, Bhed" to revoke Jammu and Kashmir's special status. The process required collective efforts of various stakeholders, including legal experts, advocates, govt. leaders and parliamentarians. 

However, to understand the tactic used to abrogate this Article 370, we need to delve into the historical context of when the special status was granted to J & K. Stay with us till the end for a comprehensive and detailed explanation, saving you from the hassle of searching for answers regarding Article 370.

Undecided states of British India

Moving back in time, as the Britishers prepared to leave India, they faced the daunting task of surrendering numerous states in what was known as British India. The complexity arose from the co-existence of British-controlled territories and French colonies. With a whopping count of 565 princely states, achieving a unified India seemed impossible. 

As India gained independence, these states were either asked to join India, Pakistan or remain independent. However, the fate of three states- Junagarh, Hyderabad, and Kashmir was left undecided, and amongst these three, deciding the destiny of Kashmir posed the greatest challenge.

History of Kashmir

Before starting up, remember the four main characters who shaped the history of Jammu & Kashmir; Vallabhbhai Patel, Jawaharlal Nehru, Sheikh Abdullah & Raja Hari Singh.

As the fate of Junagarh, Hyderabad & Kashmir were undecided. It was ultimately left for Vallabhbhai Patel to decide. So, after all the hassle, Junagarh formed part of the Indian state of Gujarat. Hyderabad was more inclined towards Pakistan, so Patel & the state entered into a Standstill Agreement for one period. 

Between 1947-48, the issue of Kashmir’s status popped up. Starting from the start:

• Lord Mountbatten (the last Governor-General of India) pushed Raja Hari Singh of Kashmir to decide whom to side with (India or Pakistan). 

• Hari Singh kept on stalling the matter for some reasons like if he sided with Pakistan, he would lose his position for being a Hindu & 70% of the population in Kashmir was Muslim, whereas in the case of India as well, Nehru would have brought the administration under the Centre & removed him.

• On the other hand, Sheikh Abdullah, a popular leader stood against Raja Hari Singh as he was upset with the fact that all the good jobs were only offered to Hindus. Due to this concern, he started the Kashmir Chodo Andolan. 

• On 20th Oct, 1947- Pakistan intended to attack Kashmir as Jinnah craved for this region to be a part of Pakistan. Raja Hari Singh called for help from Nehru, Patel & Lord Mountbatten. 

• Lord Mountbatten suggested helping with the Indian military only if Kashmir became part of India. So, the situation in Kashmir got worse with the Baramula incident in which the Pakistan army gang-raped many women. Hari Singh decided on accession. 

• Hari Singh signed the instrument of accession with India granting authority to the Indian government over defence, external affairs, and communication. However, the agreement did not entail the transfer of complete administrative control to India.

• The accession angered Jinnah (Pakistan), and in the aftermath of the signing of the Instrument, a significant event took place in Kashmir known as the "flamicide", in which the people of Kashmir made a resolute choice to align themselves with India, resulting in widespread support for India's cause.

Formation of J & K Constituent Assembly

• Nehru approached the UN in 1948 when both India and Pakistan came to a truce, and LOC was constituted. (LOC is the borderline where Pakistan’s attack ended on India- (Indo- Pak clash).

• By this time, Sheikh Abdullah became immensely popular and replaced Raja Hari Singh as the Prime Minister. Then in June 1950, a June meeting was held, and Patel, Nehru, along with Sheikh Abdullah, sat in the meeting & discussed the Constitution of Kashmir.

• When Constituent Assembly was formed, Sheikh Abdullah was also a member, and it incorporated the special status of Kashmir under Article 306(A) in Draft Constitution, which later became Article 370 in the final draft of the Indian Constitution.

• To cater to the changing needs of society and states, Article 370 was inserted in the Part named "Temporary & Transitional Provisions" (it was a temporary provision).

• However, by the 13th Amendment Act, 1962, Nagaland was also given special status under Article 371A. However, they doubted that the insertion of special status provisions under the part “Temporary Provisions” would be temporary. So, the word “Special” was added in the name.

• The Part became “Temporary, Transitional & Special Provisions”.

• In 1951, J & K Constituent Assembly was formed to draft the Constitution of J & K. This separate Constitution gave J & K its own separate flag, autonomy and a separate set of laws. 

Article 370 of the Indian Constitution- Explained

Before digging into Article 370 in detail, let us first check out the classification of states in 1950 under the Indian Constitution, which is now repealed. The distinction between Part A, B, C, and D States are now classified into 2 units:

a) States

b) Union territories.

The posts of Rajpramukhs were demolished. The State Reorganization Act of 1956 formed 14 states and 6 union territories at that time.

• Part A- (Arts. 152- 237)- This part comprised states surrendered to India by the Britishers. (Repealed)

• Part B- (Art. 238)- This part comprised the states who were reluctant to join India, like Hyderabad, J & K etc.(Repealed)

• Part C- (Arts. 239- 242)- This part included small states that Britishers used as Union Territories (Chief Commissioner states), such as Manipur. (Repealed)

• Part D- (Arts. 243)- Included Andaman & Nicobar. (Repealed)

Article 370 & its Clauses

Now, here's some information about Article 370. Article 370 of the Indian Constitution (ABROGATED) comprises 3 major clauses:

1. Art. 370 (1)

2. Art. 370 (2)

3. Art. 370 (3)

Let's check these one by one:

1. Art. 370 (1) is further divided into three clauses: Clause (B)(C)(D), Clause (A) has been repealed with Part B.

• Clause B- This clause talks about the Centre’s power over J & K. Whether the Centre can make laws for J & K or not. 

1. It says that the Parliament is empowered to make laws for the said State, but it will be limited to matters specified in the Union List and the Concurrent List, which, in consultation with the Government of J & K, are declared by the President to correspond to matters specified in the Instrument of Accession of J & K with Indian dominion.

2.  It says that the Centre will have power over the J & K & can make laws on merely 3 subjects- Defence, International affairs & Communication but with the concurrence of the J & K govt. 

• Clause C- This sub-clause states that only art. 370 & 370 (1) will be applicable on J & K.

• Clause D- This states that if any other article of the Constitution except for Arts. 370 & 370 (1) is to be applied on J & K, then President’s order has to be issued

1. With the consultation of J & K govt. if the articles are related to 3 subjects: defence, international affairs & communication.

2. With the concurrence of J & K govt. In case of any other article apart from the 3 subjects. 

Examples: Art. 356 of the Constitution applied in J & K in 1964, Election Commission was allowed to conduct elections in 1959.

2. Art. 370 (2)- If J & K govt. gives concurrence to the Centre (referred to in Clause B sub-clause 2 & Clause D sub-clause 2), then such concurrence is said to be valid if the Constituent Assembly of J & K is satisfied. 

3. Art. 370 (3)- It stated that the special status under Art. 370 can be removed only by the President’s order with the recommendation of the J & K Constituent Assembly.

Now, the catch was that the J & K Constituent Assembly was no longer in existence. So, it was thought that art. 370 gained permanent status, and the Centre can never exercise power over J & K.

Procedure of Abrogation of Article 370

To answer this question in a simplified manner, let’s break down the process:

1. Original Status- Article 370 of the Indian Constitution granted special status to Jammu and Kashmir, providing it with a degree of autonomy. This Article 370 could have been repealed easily via Art. 370 (3).

2. Dissolution of Constituent Assembly- However, the problem was that the Constituent Assembly was dissolved in 1957. So, Judiciary was positive that this article had acquired permanent status.

3. Presidential Order (Aug 5, 2019)- On Aug 5th, 2019, President issued the Constitution (Application to J & K) Order, 2019 pursuant to Art. 370 (1) of Indian Constitution.

4. Changed interpretation- The govt. used its power under Art. 370 (1) to amend Art. 367 (i.e.; the interpretation clause of the Constitution) so that the terms Govt. of the state of J & K in Art. 370 (1)(b) would be construed as the ‘Governor of J & K’ and the Constituent Assembly in Art. 370 (3) would be construed as the ‘current legislative assembly of J & K’s. 

Basically, the interpretation of these clauses was changed. The Centre entered through Art. 370 (1), touched Art. 367 and changed the interpretation of the clauses of Art. 370 (1).

5. Statutory Resolution- The Upper House of the Parliament passed a statutory resolution recommending President to abrogate most of Art. 370 pursuant to Art. 370 (3) as the Constituent Assembly mentioned under this clause (3) was now being construed as the ‘current legislative assembly of J & K’.

6. Revocation of special status & Constitutional Application- On Aug 6th, the President implemented this & revoked the special status of J & K. Hence, all the provisions of the Constitution will now apply to J & K.

7. Reorganization Act- Special status removed & J & K Reorganization Act, 2019 passed making J & K a Union Territory with the legislature and Ladakh, a Union Territory without Legislature.

Removal of Art. 35A of the Indian Constitution

First of all, Article 35A of the Indian Constitution was entered in the Indian Constitution & applied on J & K through a Presidential Order of 1954 with the help of Art. 370 (1)(D) of the Indian Constitution, which deliberates procedure on how any other article of the Constitution should be applied in the state. This article empowered the Jammu and Kashmir state legislature to define "permanent residents" of the state and provide special rights and privileges to them.

The Indian President issued a Presidential Order under Article 370(1) of the Constitution. This order made Article 35A inoperative by modifying the provisions of Article 370. This 2019 Order superseded the 1954 Order, thus, automatically abolishing Art. 35A.

Legal implications of abrogation

• Art. 370 (1)(b)- The clause mentioned that the Centre needed the “concurrence of govt. of state of J & K”. However, the state had been under the Presidential rule under article 356 after BJP withdrew from an alliance with a regional party & the governor dissolved the state assembly. Governor is a representative of Centre, just like the President. So any Presidential Order will amount to the Centre taking its own consent to amend the Constitution.

• Art. 370 (1)(c) prevents the President from amending Art. 370 itself. He cannot do so even indirectly. So, Art. 368 should have been the only way to amend it. Thus, invoking questions on its legality.

Conclusion

The abrogation of Article 370 marked a significant turning point in the history of Jammu, Kashmir, and India. The provision granting special status to J & K for over seven decades was finally repealed on August 5, 2019. This move aimed to foster greater integration of Jammu and Kashmir with the rest of India, providing equal rights and opportunities to its residents. As the dust settles, the future of the region remains uncertain. Still, the events surrounding Article 370's abrogation have unquestionably left a lasting impact on the nation's history and the lives of its people. 

FAQs on Article 370 & its abrogation

Q: When was Article 370 abrogated? 

A: Article 370 was abrogated on August 5, 2019.

Q: What was the reason for abrogating Article 370? 

A: The Indian government stated that the abrogation of Article 370 was aimed at promoting better integration of Jammu and Kashmir with the rest of India and to facilitate equal rights and opportunities for its residents.

Q: How was Article 370 abrogated? 

A: The government used a combination of Presidential Orders and parliamentary procedures to amend and effectively abrogate Article 370.

Q: What happened to the special status of Jammu and Kashmir after Article 370 was abrogated? 

A: With the abrogation of Article 370, Jammu and Kashmir's special status and autonomy were revoked, and the region became more directly governed by the Indian government.

Q: Was the abrogation of Article 370 legally challenged? 

A: Yes, there were legal challenges raised against the abrogation in the Supreme Court of India.

Q: What are the implications of abrogating Article 370? 

A: The abrogation led to the reorganization of the state of Jammu and Kashmir into two separate Union Territories: Jammu and Kashmir, and Ladakh. It also resulted in the application of the Indian Constitution in its entirety to the region.

Q: How did people in Jammu and Kashmir react to the abrogation? 

A: The abrogation of Article 370 resulted in mixed reactions. While some people in the region welcomed the decision, others expressed concern and dissent over losing special status.

Q: Did the abrogation impact the security situation in the region? 

A: The abrogation of Article 370 was followed by a heightened security presence in the region. There were some protests and civil unrest in the initial aftermath.

Q: Did the abrogation affect the relationship between India and Pakistan? 

A: The abrogation of Article 370 further strained the already tense relationship between India and Pakistan, with Pakistan expressing strong opposition and condemning the move.