Article 370 and 35A | All you need to know:
What is Article 35A?
Article 35A of the Indian Constitution empowers J&K legislature to define state’s “permanent residents” and their special rights and privileges. The law was inserted in the Constitution through a Presidential order of 1954 instead of a parliamentary amendment under Article 368.
35A is based on Article 370, a temporary and transitional provision that was included in the Indian Constitution, on the terms negotiated between J&K’s popular leader Sheikh Abdullah and the Centre led by then Prime Minister Jawaharlal Nehru in 1949.
What is Article 370?
Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of Jammu & Kashmir has been accorded special status under Art370. All the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister in place of chief minister.
History of Article 370
The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State could not be compelled to accept any future Constitution of India. The State was within its rights to draft its own Constitution and to decide for itself what additional powers to extend to the Central Government. The Article 370 was designed to protect those rights. According to the constitutional scholar A. G. Noorani, the Article 370 records a ‘solemn compact’. Neither India nor the State can unilaterally amend or abrogate the Article except in accordance with the terms of the Article.
Article 370 embodied six special provisions for Jammu and Kashmir:
i)It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
ii)Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
iii)Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
iv)The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
v)The State Government’s authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
vi)The Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.
Once the State’s Constitutional Assembly convened on 31 October 1951, the State Government’s power to give `concurrence’ lapsed. After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority provided to extend more powers to the Central Government or to accept Central institutions vanished. Noorani states that this understanding of the constitutionality of the Centre-State relations informed the decisions of India till 1957, but that it was abandoned afterwards. In subsequent years, other provisions continued to be extended to the State with the ‘concurrence’ of the State Government
Union Home Minister Amit Shah on Monday proposed to scrap Article 370 of the Constitution which gives special status to Jammu and Kashmir and said the state will be split into two Union Territories: Jammu and Kashmir with an Assembly and Ladakh without one.
With this reform, India now has 28 states and 9 union territories.
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