Both the Articles of the constitution, i.e. Article 35 A and Article 370 concern the State of Jammu and Kashmir, both of them being temporary provisions.
The difference is concerning their subject –
• where Article 35 A protects the rights of the people concerning employment, property and aids by the state government. (Not incorporated in the Constitution of India)
• whereas Article 370 protects and grants special status to the sovereignty of the state giving the power to make a separate set of laws to be applied for its governance. (Incorporated in the Constitution of India)
- Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution.
- Article 370 was only a ‘temporary provision’ to help bring normalcy in Jammu and Kashmir and strengthen democracy in that State.
- Article 370 guarantees special status to J&K, restricting the central government’s power to only three subjects – defence, foreign affairs and communication.
History of Article 370 of the Indian Constitution:
- When India and Pakistan got freedom from the British rule, J&K refused to join any of them and wanted to remain as an independent nation.
- Maharaja Hari Singh was the King of Jammu and Kashmir at that time.
- Azad Kashmir Forces, backed by Pakistan, attacked Jammu and Kashmir on 20th Oct. 1947. Maharaja Hari Singh asked India for help as they were not able to protect themselves. India agreed to help if Jammu and Kashmir accede to India and an ‘Instrument of Accession’ was signed between on 26th October 1947.
- On 17th October 1949, the Indian Constituent Assembly adopted Article 370 of the Constitution. It clearly states that the provisions of this Article with respect to the State of J&K are ‘temporary’ and not permanent.
The special privileges are given to J&K as per Article 370 of the Indian Constitution:
- Jammu and Kashmir citizens have dual citizenship. They are a citizen of J&K State and also an Indian citizen.
- J&K has its own separate flag.
- The term period of the legislative assembly in Jammu and Kashmir is 6 years.
- The orders of the Supreme Court are not valid in Jammu and Kashmir.
- Only a permanent resident of Kashmir can buy land in Kashmir.
- A woman who marries an Indian of the other state would no more have its Kashmiri citizenship. But if she marries a Pakistani, her citizenship will remain intact.
- Except for defence, foreign affairs and communication, all the other laws have to be passed by the State government before they become applicable.
- All the bills passed by the parliament should also be passed by the State government to be applicable in the State. For example, the Right to Information (RTI) act cannot be filed by the Kashmiri citizens because the RTI bill is not passed by the State government.
- Right to Education is also not implemented in Kashmir.
- Indian Parliament cannot increase or reduce the borders of the state.
Article 35A of the Indian Constitution is an article that allows the Jammu and Kashmir state’s legislature to define “permanent resident” of the country. It was added to the Constitution through a situational Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, exercising the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.
History of Article 35A and special rights are given to the citizens of J&K
- In 1952, former Prime Minister Jawaharlal Nehru and Jammu and Kashmir’s Prime Minister Sheikh Abdullah had decided to formulate the article 35A.
- It was finally on May 14, 1954, on the suggestion of Jawaharlal Nehru that President Rajendra Prasad added Article 35A to Article 370 of the Indian Constitution.
- Article 35A is part of Article 370 of the Indian Constitution.
- Under Article 370 (1) (d) of the Indian Constitution, the President gets a special right to make changes to the Constitution.
- Making use of this right, without any bill being passed in the Parliament, Article 35A was added to the Constitution.
- There was no modification or bill in the Indian parliament to implement it. Following special rights received under Article 370 and the support of the Government of Jammu and Kashmir, Article 35A became part of Article 370.
Article 35 A – (The Article doesn’t find mention in any of the bare text of Constitution published in INDIA, including the one kept in the Parliament)
“Saving of laws concerning permanent residents and their rights.” — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any exclusive rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”
The critical side of Article 35A:
Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.
The ‘classification’ created by Article 35A has to be tested on the principle of equality as it treats non-permanent residents of J&K as ‘second-class’ citizens.
- Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.
- Meritorious students are denied scholarships and they cannot even seek redress in any court of law.
- Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.
- It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.
- The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).
Supporting side of Article 35A:
- Himachal Pradesh and Uttarakhand and such other states also have laws which say that no outsider can buy land.
- Article 370 (1) (d) empowers the President of India to extend with requisite exceptions and modifications the other provisions of the Indian Constitution to J&K as may be necessary.
- The Delhi Agreement of 1952 followed Article 370. According to Clause 2 of the agreement, the State Legislature of J&K was given the power to make laws for conferring special rights and privileges on the ‘state subjects’.
- Article 35A follows the Instrument of Accession and the guarantee given to the State of J&K that the State’s autonomy will not be disturbed.