Understanding Article 370 and 35A

• The IoA came into the scene after the Indian Independence Act, 1947 divided British India into India and Pakistan.
• The Act provided three options to some 600 princely states whose sovereignty was restored on Independence:
  • Remain an independent country
  • Join Dominion of India
  • Join Dominion of Pakistan
• This joining with either of the two countries was to be done through an IoA.
• There was no prescribed format for IoA, the states could join on their own terms and conditions.
• The maxim for contracts between states is Pacta sunt servanda(Latin for "agreements must be kept"), i.e. promises between states must be honoured; if there is a breach of contract, the states are to be restored to the original position.
• IoA for Kashmir
  • Following an invasion from tribesmen and Army men from Pakistan, Raja of J&K Hari Singh signed the Instrument of Accession on October 26, 1947.
  • Governor General Lord Mountbatten accepted it with following conditions:
    • Powers to the parliament to legislate in respect of J&K only on Defence, External Affairs and Communications.
    • Clause 5 of IoA: It cannot be varied by any amendment of the Act or of Indian Independence Act unless such accepted by the king by asupplementary Instrument.
    • Clause 7 of IoA: Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future constitution of India or bound to enter into arrangements with the Government of India under any such future constitution.
  • India’s stated policy regarding this IoA was that wherever there was a dispute on accession, it should be settled in accordance with the wishes of people.

Understanding Article 370

• Enactment
  • As per the conditions in IoA, the original draft of Article 370 was prepared by the Government of J&K.
  • With some modifications Article 306A (now 370) was passed in the Indian Constituent Assembly on May 27, 1949.
  • On October 17, 1949, Article 370 was finally included in the Constitution.
  • During passing of motion regarding article 370 and including it in constitution it was committed for plebiscite in Jammu & Kashmir.
• Nature of provision
  • Article 370 comes under Part XXI of the Constitution, whose heading is ‘Temporary, Transitional and Special Provisions’, due to which it is interpreted as temporary provision.
  • Also another interpretation was that accession was temporary until a plebiscite.
  • However, in many of the cases like Delhi High Court in Kumari Vijayalaksmi (2017), The Supreme Court in April 2018, and in Sampat Prakash (1969) the court refused to accept Article 370 as temporary.
• Deletion
  • Article 370(3) permits deletion by a Presidential Order, which has to be preceded by the concurrence of J&K’s Constituent Assembly.
  • However, the J&K constituent Assembly was dissolved on January 26, 1957.
  • Hence, some opine that now it cannot be deleted but others opine that it can be deleted with the concurrence of the State Assembly.
• Provisions under it
  • Restricts Parliament’s legislative powers in respect of J&K.
  • It lays down that only two Articles would apply to J&K: Article 1, which defines India, and Article 370 itself. 
  • Article 370 says other provisions of the Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”.
  • Moreover, such provisions should be in concurrence with the state government and the endorsement of the J&K Constituent Assembly.
• Significance for Indian union
  • Article 370 itself mentions Article 1, which includes J&K in the list of states.
  • It is described as a bridge through which the Indian Constitution is applied to J&K. 
  • This is the way through which, by mere Presidential Orders, India has almost extended many of the constitutional provisions to J&K. 
• Issues with Article 370
  • Some opine that it is matter of integration with Indian union and hence should be deleted.
  • However, Article 370 is not an issue of integration but of autonomy, as Article 3 and preamble of the J&K Constitution itself declares J&K to be an integral part of India.

Understanding Article 35 A

• Article 35A stems from Article 370 and was incorporated in the constitution by a presidential order under article 370 in 1954 on the advice of the Cabinet. 
• Article 35-A provides special rights and privileges to permanent residents of Jammu & Kashmir.
• Article 35A gives the J&K Legislature, full freedom to decide the ‘permanent residents’ of the State and grant them special rights and privileges in:
  • State public sector jobs
  • Acquisition of property in the State
  • Scholarships and other public aid and welfare programs
• The provision also provides that any act of the State legislature coming under the ambit of Article 35A cannot be challenged for violating the Indian Constitution or any other law of the land.

Reasons for challenging article 35A

• It has been challenged on the ground that Article 35A is unconstitutional or violates the basic structure of the Constitution. 
• As Article 35A was not passed as per the amending process given in Article 368, but was inserted on the recommendation of J&K’s Constituent Assembly through a Presidential Order.
• In this context, many other presidential orders are also questionable which were passed invoking article 35A.
• Some opine that since Article 35A was added before the existence of basic structure theory in 1973,it cannot be tested on the ground of basic structure. 
• Now, it is upto the Supreme Court to decide on the constitutionality of Article 35A.