research paper on article 370 and 35a

Article 370 and 35A: Origin, Provisions, and the Politics of Contestation

• First Online: 28 November 2020

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• Aijaz Ashraf Wani 2 ,
• Imran Ahmad Khan 2 &
• Tabzeer Yaseen 3  

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In August 2019, the Indian government revoked the autonomous status of Jammu and Kashmir (J&K), protected by Articles 370 and 35A of the Indian constitution. The special provisions had been in place since October 1947, when its ruler acceded to India through a conditional Instrument of Accession. Although there has been significant media coverage of the abrogation and subsequent military siege in Kashmir, there remains scant awareness regarding the significance of the articles for Kashmiris. This chapter provides a historical account of how the articles came into existence and discusses why they were so highly contested. It allows the reader to appreciate better the implications of the abrogation of J&K’s special provisions and why such political fallout has come in its wake.

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Wani, A.A., Khan, I.A., Yaseen, T. (2021). Article 370 and 35A: Origin, Provisions, and the Politics of Contestation. In: Hussain, S. (eds) Society and Politics of Jammu and Kashmir. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-56481-0_3

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International Journal of Legal Science & Innovation

[issn 2581 – 9453].

Abrogation of Article 370: A Detailed Analysis

• Dhriti Anil Kawale and Mohak Agrawal
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Dhriti Anil Kawale

Student at University of Mumbai Law Academy, India

Mohak Agrawal

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The Indian Constitution governs the country, ensuring social stability, protecting human rights, and safeguarding mankind from grave crimes. Jammu and Kashmir, a unique state under the Indian Constitution, has special status under Article 370, which defines India-Jammu and Kashmir relations. The 2019 Jammu and Kashmir Reorganization Act provides an essential copy of the Indian Constitution. The Indian government has used constitutional power to abolish Articles 370 and 35A, causing concerns about the region's integration for peace and development. The state's permanent resident laws have been criticized for being discriminatory, including the difficulties faced by West Pakistani refugees, immigrant workers, and female residents. The Jammu and Kashmir Reorganization Order, 2020, abolished 29 state laws and altered 109 Jammu and Kashmir laws, including the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act 2010. Removing Article 370 would enhance national security, eliminate discrimination against women, Dalits, and other marginalized communities, and grant them equal rights and privileges.

• Article 370
• Unique Status
• Jammu and Kashmir Reorganization Act
• Article 35A

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International Journal of Legal Science and Innovation, Volume 6, Issue 1, Page 132 - 146

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Kashmir special status explained: What are Articles 370 and 35A?

Indian government abolishes decades-old laws that gave a measure of autonomy to the disputed Muslim-majority region.

India has scrapped a law that grants special status to Indian-administered Kashmir amid an indefinite lockdown and massive troop deployment in the disputed region.

Minister of Home Affairs Amit Shah, a close ally of Prime Minister Narendra Modi , told parliament on Monday that the president had signed a decree abolishing Article 370 of the constitution, stripping the significant autonomy Kashmir had enjoyed for seven decades.

The move is expected to further inflame tensions in the Muslim-majority region  of more than seven million people and infuriate  rival Pakistan.

The government, led by the Hindu nationalist Bharatiya Janata Party ( BJP ), also moved a bill proposing the Jammu and Kashmir state be divided into two “union territories” directly ruled by New Delhi.

The Jammu and Kashmir union territory will include the Hindu-majority Jammu region and will have a legislative assembly.

The Buddhist-majority Ladakh region, which has a considerable population of Shia Muslims, will also be a union territory, but it will not have an assembly.

All phones, internet services and cable networks were cut off on Sunday night and pro-India leaders placed under house arrest following days of soaring tensions.

What is Article 370?

Article 370 was the basis of Jammu and Kashmir’s accession to the Indian union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from the British rule in 1947.

The article, which came into effect in 1949, exempts Jammu and Kashmir state from the Indian constitution.

It  allows the Indian-administered region jurisdiction to make its own laws in all matters except finance, defence, foreign affairs and communications.

It established a separate constitution and a separate flag and denied property rights in the region to the outsiders.

That means the residents of the state live under different laws from the rest of the country in matters such as property ownership and citizenship.

What is Article 35A?

Article 35A was introduced through a presidential order in 1954 to continue the old provisions of the territory regulations under Article 370 of the Indian constitution.

The article permits the local legislature in Indian-administered Kashmir to define permanent residents of the region.

It forbids outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region.

The article, referred to as the Permanent Residents Law, also bars female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extends to such women’s children.

While Article 35A has remained unchanged, some aspects of Article 370 have been diluted over the decades.

Critics of Article 35A say the provision did not have any parliamentary sanction, and that it discriminates against women.

Why are they being abolished?

The ruling BJP and its right-wing allies have challenged Article 35A which it calls discriminatory, through a series of petitions . 

Last month, a senior BJP leader hinted that the government was planning to form exclusive Hindu settlements in the region.

Prime Minister Modi led his BJP to a landslide win in May on the back of a divisive campaign that ostensibly targeted Muslims, vowing to remoe Article 370 and its 35A provision. 

“This is a straightforward pandering to the Hindu-majority electorate in India,” said Ajai Shukla, a defence analyst in New Delhi. 

“There is a political polarisation here with the ruling party trying to pander to its Hindu vote bank and to anything it sees as anti-Muslim,” he told Al Jazeera. “For the government, it is a step that it had promised and now delivered on.” 

What does this mean?

With Indian-administered Kashmir’s special status repealed, people from the rest of India would have the right to acquire property in Jammu and Kashmir and settle there permanently.

Kashmiris fear the move would lead to a demographic transformation of the region from majority-Muslim to majority-Hindu.

“They [the government] have not just struck down the provision of 370, but they have actually dismantled the fate of Jammu and Kashmir as it existed in the Indian constitution,” said Shukla.

“It now consists of union territories which are centrally governed – Ladakh and Jammu and Kashmir. This is a sort of a radical new provision, which many people are saying will require a constitutional amendment.”

Article 370 of the Indian constitution permits revocation of the law by presidential order. However, such an order must be introduced before the state’s Constituent Assembly.

Since that body was dissolved in 1957, experts have different views on the abrogation of the law, with some believing it needs approval by state lawmakers and others seeing a presidential order as sufficient.

According to Shukla, the order will face both legal and political challenges in the coming days.

“The first legal challenge will come from Kashmir itself. Doing away with Article 370 now opens the door for an open Palestine-type independence struggle within Kashmir,” he said.

“In India as well, there will be mounting legal challenges and political opposition which has many illustrious lawyers. It can be expected that these will be heard by a constitutional bench in the Supreme Court.”

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Article 370 and 35A: Origin, Provisions and the Politics of Contestation

2021, Serena Hussain (ed) Society and Politics of Jammu and Kashmir Palgrave Macmillan (2021)

In August 2019, the Indian government revoked the autonomous status of Jammu and Kashmir (J&K), protected by Articles 370 and 35A of the Indian constitution. The special provisions had been in place since October 1947, when its ruler acceded to India through a conditional Instrument of Accession. Although there has been significant media coverage of the abrogation and subsequent military siege in Kashmir, there remains scant awareness regarding the significance of the articles for Kashmiris. This chapter provides a historical account of how the articles came into existence and discusses why they were so highly contested. It allows the reader to appreciate better the implications of the abrogation of J&K’s special provisions and why such political fallout has come in its wake.

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Article 370 of the Indian Constitution stipulates autonomy for the state of Jammu and Kashmir (J&K). Terms of the Article have remained mired in controversy owing its unequal dispensation within the framework of free India. This paper examines Article 370 and the validity of politics attached to it, based on four specific arguments. First, the Genesis of Article 370 spawns inequality in India. Second, its Retention implies festering of contentious issues. Third, its Ramifications forge inequality within J&K. Fourth, how Politics over Article 370 only seek limited leverage from it. These arguments have been examined through an engagement with primary and secondary sources and views analyzed in different traditions. The case universe comprises views across a spectrum of opinion. An interpretivist approach classifies this debate in the larger context of Continuation or Revocation of Article 370, based on the research question whether Article 370 has worked in the manner envisaged, or has aggravated inequality and fuelled growth of conflict in J&K.

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Explained: What are Articles 370 and 35A?

What is article 370 and 35a: a recent central ordinance, which extends reservation to scs and sts in j&k, throws the spotlight on article 35a, as well as article 370 from which it derives. what are these two provisions.

What is Article 370?

Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. It restricts Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to other matters, “concurrence” of the state government is mandatory. The IoA came into play when the Indian Independence Act, 1947 divided British India into India and Pakistan.

Explained: Here’s what has changed in Jammu and Kashmir

For some 600 princely states whose sovereignty was restored on Independence, the Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan — and this joining with either of the two countries was to be through an IoA. Though no prescribed form was provided, a state so joining could specify the terms on which it agreed to join. The maxim for contracts between states is pacta sunt servanda, i.e. promises between states must be honoured; if there is a breach of contract, the general rule is that parties are to be restored to the original position.

A number of other states enjoy special status under Article 371, from 371A to 371I.

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What were the terms included in the IoA for Kashmir?

The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”.

How did the accession come about?

Raja Hari Singh had initially decided to remain independent and sign standstill agreements with India and Pakistan, and Pakistan in fact signed it. But following an invasion from tribesmen and Army men in plainclothes from Pakistan, he sought the help of India, which in turn sought the accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26, 1947 and Governor General Lord Mountbatten accepted it on October 27, 1947.

It was India’s stated policy that wherever there was a dispute on accession, it should be settled in accordance with the wishes of people rather than a unilateral decision of the ruler of the princely state. In India’s acceptance of the IoA, Lord Mountbatten stated that “it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people”. India regarded accession as purely temporary and provisional, as stated in the Government of India’s White Paper on J&K in 1948. In a letter to J&K Prime Minister Sheikh Abdullah dated May 17, 1949, Prime Minister Jawaharlal Nehru with the concurrence of Vallabhbhai Patel and N Gopalaswami Ayyangar wrote: “It has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly convened for the purpose.”

How was Article 370 enacted?

The original draft was given by the Government of J&K. Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. Moving the motion, Ayyangar said that though accession was complete, India had offered to have a plebiscite taken when the conditions were created, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”. On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly.

Was Article 370 a temporary provision?

It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’. Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. Another interpretation was that accession was temporary until a plebiscite. The Union government, in a written reply in Parliament last year, said there is no proposal to remove Article 370. Delhi High Court in Kumari Vijayalaksmi (2017) too rejected a petition that said Article 370 is temporary and its continuation is a fraud on the Constitution. The Supreme Court in April 2018 said that despite the headnote using the word “temporary’, Article 370 is not temporary. In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision.

Can Article 370 be deleted?

Yes, Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly. Since such an Assembly was dissolved on January 26, 1957, one view is it cannot be deleted anymore. But the other view is that it can be done, but only with the concurrence of the State Assembly.

What is Article 370’s significance for the Indian Union?

Article 370 itself mentions Article 1, which includes J&K in the list of states. Article 370 has been described as a tunnel through which the Constitution is applied to J&K. Nehru, however, said in Lok Sabha on November 27, 1963 that “Article 370 has eroded”. India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status. By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments. Ninety-four of 97 entries in the Union List are applicable to J&K; 26 out of 47 items of the Concurrent List have been extended.; 260 of 395 Articles have been extended to the state, besides 7 of 12 Schedules.

The Centre has used Article 370 even to amend a number of provisions of J&K’s Constitution, though that power was not given to the President under Article 370. Article 356 was extended though a similar provision that was already in Article 92 of the J&K Constitution, which required that President’s Rule could be ordered only with the concurrence of the President. To change provisions for the Governor being elected by the Assembly, Article 370 was used to convert it into a nominee of the President. To extend President’s rule beyond one year in Punjab, the government needed the 59th, 64th, 67th and 68th Constitutional Amendments, but achieved the same result in J&K just by invoking Article 370. Again, Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without a resolution by the Assembly and just by a recommendation of the Governor. In certain ways, Article 370 reduces J&K’s powers in comparison to other states. It is more useful for India today than J&K.

Is there any ground in the view that Article 370 is essential for J&K being a part of India?

Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to the Constitution, not only is there no claim to sovereignty, but there is categorical acknowledgement about the object of the J&K Constitution being “to further define the existing relationship of the state with the Union of India as its integral part thereof. Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.” Article 370 is not an issue of integration but of autonomy. Those who advocate its deletion are more concerned with uniformity rather than integration.

What is Article 35A?

Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954. Article 35A is unique in the sense that it does not appear in the main body of the Constitution — Article 35 is immediately followed by Article 36 — but comes up in Appendix I. Article 35A empowers the J&K legislature to define the state’s permanent residents and their special rights and privileges.

Why is it being challenged?

The Supreme Court will examine whether it is unconstitutional or violates the basic structure of the Constitution. But unless it is upheld, many Presidential Orders may become questionable. 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.

Article 370 is not only part of the Constitution but also part of federalism, which is basic structure. Accordingly, the court has upheld successive Presidential Orders under Article 370.

Since Article 35A predates basic structure theory of 1973, as per Waman Rao (1981), it cannot be tested on the touchstone of basic structure. Certain types of restrictions on purchase of land are also in place in several other states, including some in the Northeast and Himachal Pradesh. Domicile-based reservation in admissions and even jobs is followed in a number of states, including under Article 371D for undivided Andhra Pradesh . The Centre’s recent decision extending to J&K reservation benefits for SCs, STs, OBCs and those living along international borders, announced last week. throws the spotlight back on Article 35A.

Parent provision and its offshoot

Article 370.

Part of the Constitution ever since it came into effect, 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”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly.

• Article 35A

Introduced by a Presidential Order of 1954, it empowers the J&K legislature to define a “permanent resident” of the state, and to provide special rights and privileges to those permanent residents.

(The author is an expert of constitutional law and Vice-Chancellor of NALSAR University of Law, Hyderabad )

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