Can article 370 and 35A be removed?

Article 370 and 35A

On the backdrop of the unfortunate Pulwama terror attack which took the lives of our 40 odd brave Jawans, the debate has again surfaced in the public sphere to remove the article 370 and 35A which is applicable to the state of Jammu and Kashmir. 

In this column, we will be analysing the historical background, necessity at that time, current relevance and the way forward with respect to article 370 and 35A.

Historical Background:

During Partition of British India to two different dominions i.e. India and Pakistan, there were nearly 565 princely states. With the passage of Indian Independence Act 1947, the British Paramountcy over these princely states ended and the princely states became independent.

Princely states were not in direct control of the British regime. Britishers had given some sorts of independence to the princes of these princely states to rule in their jurisdiction, in return the princes owed their allegiance to the British crown.

While 13 princely states joined the dominion of Pakistan, 549 princely states joined the dominion of India, three princely states i.e. Jammu & Kashmir, Hyderabad, Junagadh chose to remain independent. With the vision and effort of Sardar Patel, India managed to annex Hyderabad and Junagadh with its territory. 

Then Jammu and Kashmir was being ruled by the Dogra ruler Maharaja Hari Singh whose state was predominantly Muslim Subjects. Pakistan eyed to annex J&K and sent Azad Kashmir Forces to destabilise J&K. On these disturbed circumstances, Hari Singh sought help of Indian government. 

Indian government promised to protect J&K provided Maharaja Hari Singh signs the Instrument of Accession Agreement. Hari Singh signed this agreement, and J&K became part of India. 

But J&K's accession was something different. Hari Singh didn't sign the Merger Agreement with the Indian government unlike other princely states. So what would be the relation between J&K and the union government without merger agreement? This was brainstormed among government officials and constitutional experts. Ambedkar was asked to draft a special article, but he refused to do so. Jawaharlal Nehru tasked Gopalaswammy Aayangar to draft a special article in relation to J&K.

He drafted the article 370 which conferred special status to J&K. Meanwhile, Nehru asked Hari Singh to step out and made Sheikh Abdullah the prime minister of J&K. 

On seeing the involvement of various foreign countries on the dispute of J&K, Nehru took the case to United Nations. The UN Security council through its resolution 47 asked for a plebiscite in J&K and complete demilitarisation of J&K. But Pakistan refused to withdraw it's troop from J&K and the plebiscite in J&K never became a reality. 

On the other hand, India formed a constituent assembly of J&K and gave power to the people to decide what should be the nature of relation between J&K and Union of India by drafting an independent constitution. 

It was decided that only article 1 and article 370 would be applicable to J&K. On getting intelligence input that Sheikh Abdullah might backtrack from the negotiations, Nehru made Bakshi Gulam Mohammed the prime minister of J&K. Then an agreement was signed between Bakshi Gulam Mohammed and government of India to incorporate other important provisions of constitution of India in J&K constitution. This agreement was known as the Delhi Agreement of 1952. 

The Instrument of Accession Agreement had given parliament of India the power to legislate on 3 subjects Defence, External Affairs and Communications when it comes to J&K. Article 370 had made it clear that other provisions of the constitution of India and any other amendments to the constitution of India, would not be directly applicable to J&K. If government of India wants to extend any provision of constitution of India to J&K, it can do so through presidential order in concurrence and consultation with the state government. Then the state government has to table that provision before constituent assembly and the constituent assembly has to ratify it. So that it becomes a part of J&K constitution.

Necessity of article 370:

Gopalaswammy Aayangar, who was the principal drafter of article 370, was asked in the constituent assembly of India about the special status to J&K. One of the members of the constituent assembly asked "Why this discrimination?". In reply Aayangar pointed out the following reasons:

1. J&K is not ready for full integration to the union of India.

2. International community including UN is watching each development in J&K.

3. There is a war going on with Pakistan over J&K.

4. Pakistan has taken control of some parts of J&K.

5. Instrument of Accession Agreement signed with Maharaja Hari Singh.

Aayangar assured the members that Article 370 was only temporary and transient in nature, and it would be removed automatically when everything would be alright in J&K.

The then president of India Dr. Rajendra Prasad issued a presidential order i.e. The Constitution (application to J&K) Order 1954 which extended many crucial provisions of the constitution of India to J&K. Article 35A was an integral part of this presidential order. Maharaja Hari Singh had passed an act i.e. the state subjects law in 1927 due to the pressure of Hindu Kashmiris who didn't want their resources to be snatched away by Hindus from outside J&K. Article 35A finds its origin from state subjects law. 

What does article 35A say?

It gives J&K assembly the sole right to decide and define the permanent residents of J&K and what privileges these permanent residents will get. 

Article 35A considered a person to be permanent resident if he/she was a state subject in 1954, had been living in the state during the past 10 years and had acquired immovable property legally in the state. 

Criticisms to article 35A: 

1. It doesn't find its place among 395 articles of Indian constitution rather it is found in one of the appendices of the constitution of India. That's why this article has no valid ground to continue.

2. It prohibits any outsiders of taking government jobs, getting scholarships, getting admission into state government run educational institution, etc., thereby violating fundamental rights conferred by the constitution of India.

3. This article discriminates among Indian citizens and treat others as second class citizens which is in clear violation of article 14 of the Indian constitution.

4. It prohibits anyone whoever is not a permanent resident of J&K of buying any immovable property in J&K. Hence, it is discriminatory in nature.

5. If a J&K woman marries an outsider of the state, her children can't inherit the property of their mother. Hence, this article is against gender equality and dignity and rights of women.

6. Conferring permanent resident status to anyone is arbitrary in nature.

7. Thousands of refugees who had come to J&K during partition of India had not been given permanent resident status even after 70 years. 

8. Valimiki Dalits who had been brought to J&K from Punjab to do safai work are denied permanent resident status if they pursue any other profession other than that of safai work.

9. This article has been inserted into the constitution through a mere presidential order while the constitution says only parliament has the power to amend the constitution under article 368 of the Indian constitution. That's why this article is unconstitutional. 

Some constitutional experts say that article 35A is constitutional because Article 370 gives president the power to issue presidential order in matters to J&K. 

Can article 35A be removed?

No! How? 

If article 35A is removed on the grounds that President can't insert an article to the constitution of India through mere proclamation, then all other provisions which have been extended to J&K through presidential order needs to be scrapped.

Yes! How?

Unlike other provisions which have been extended to J&K through presidential order, article 35A is in violation of the constitution of India. Hence, it can be scrapped through a mere presidential proclamation. 

Is J&K the only state to have special provisions in India? 

No. Many states like Nagaland, Assam, Manipur, Gujarat, Maharashtra, Himachal Pradesh, etc. have some special provisions under article 371 of the Indian constitution. 

Arguments in support of Article 370: 

1. Instrument of Accession Agreement signed by Maharaja Hari Singh had given the parliament the power to make laws only on defence, Communications and external affairs. So article 370 is necessary.

2. J&K is not the only state to have such special provisions.

3. Looking at the dispute with Pakistan over J&K, article 370 is essential.

Arguments against article 370: 

It gives J&K the autonomy to the extent that- 

1. J&K assembly denied to incorporate the word "Secular" and "Integrity" into its constitution which forms the essence of Indian constitution.

2. Any law made by J&K state assembly can't be challenged in any court of law in India.

3. J&K constitution doesn't recognise the minorities community.

4. Ladakhis who form a significant portion of the total population of J&K are left out and under-represented.

5. Many important laws like Prevention of Corruption act, consumer protection act, Juvenile Justice act etc. are not applicable to J&K.

6. J&K has its own penal code instead of Indian penal code.

Some experts point out that Indian constitution has no relevance in J&K due to article 370, So it needs to be scrapped.

But some experts suggest the other way round. Article 370 has not given any autonomy to J&K rather it has squeezed the autonomy of J&K. Article 370 which talks of issuing presidential order has eroded the autonomy of J&K constantly. Many provisions of the Indian constitution which were not applicable to J&K, were made applicable to J&K which was against the letter and spirit of instrument of Accession. 

Supreme Court in its previous judgements has found article 370 and 35A constitutional. SC has observed that since the constituent assembly of J&K didn't recommend to abrogate article 370 before dissolution in 1957, the temporary and transient nature of article 370 have become permanent. 

What is the way forward?

There is no doubt that article 370 and 35A violates the very essence of Indian constitution in many ways. Article 370 and 35A must be amended to keep them in line with Indian constitution and to safeguard the integrity and unity of India. But certainly, the time has not come to scrap them all together.