Constitutional Articles for Jammu & Kashmir - Article 370 and Article 35-A
This article talks about special status of state of Jammu & Kashmir in Union of India. It discusses the constitutional provisions about J&K in article 370 and article 35-A. It also describes the recent controversies against these provisions.
Background
Situation in Kashmir
Origin of Kashmir Issue
Roots of Article 370
Stands & Involvements of different parties
Origin of Article 370
Nehru-Sheikh Talks
Origin of Article 35-A
Controversy about this issue
Background
In 1947, it was realized that division of India was inevitable. The country was going to divide in to two new parts, India and Pakistan. The then existing princely states, which were 565 in number, were given an opportunity to join either side. But there were issues related to joining of few presidencies. One of them was Kashmir.
Situation in Kashmir
Kashmir was ruled by a Dogra king, Hari Singh. He wanted to remain independent rather than joining any of the new country. Protests started in Kashmir against his decision. These protests were led by Mohammad Sheikh Abdulla who wanted to accede India though majority of population in Kashmir was Muslims.
Origin of Kashmir Issue
Pakistan did not like his stand and attacked on Kashmir in October 1947. Hari Singh approached the then Prime Minister of India, Pandit Jawahar Lal Nehru, for help. The Governor General Mountbatten clarified that no help will be provided by India unless Jammu & Kashmir accede Union of India or sign an instrument of accession. After little delay, Dogra king signed an instrument of accession and sought help from India against Pakistan in war.
Roots of Article 370
The instrument of accession signed by Hari Singh was different from those signed by rulers of other princely states. This instrument transferred power on only three subjects to Union of India. These subjects were: Defence, external affairs and communication.
Stands & Involvements of different parties
King Hari Singh: He signed instrument of accession (IoA).
Sheikh Abdulla: He was made Prime Minister of the state of Kashmir. He called for a separate constituent assembly* for Kashmir. Pandit Nehru agreed for it.
India: After signing of IoA, India got engage in war with Pakistan. Pandit Nehru approached United Nations for ending this war.
United Nations (UN): UN passed a resolution on Kashmir and called for demillitarization of the region, ceasefire and a plebiscite on issue of Kashmir. Plebiscite involves knowing the opinion of public.
Origin of Article 370
When all these events were happening, at the same time, Indian constitution was being drafted. Constitution makers had to define the relation of Kashmir with union of India. It was a difficult situation for them. As said earlier, this instrument was different from those signed by other princely states. It was not a complete merger with India. Thus, a special status had to be accorded to this state which also seemed to be discriminatory. The matter was debated for about five months in constituent assembly of India. After prolonged discussion, an article was written which was devoted to Jammu & Kashmir. This is article 370 in Indian constitution which gives special status to state of J&K. The factors which gave birth to article 370 were as following:
Nehru-Sheikh Talks
In 1952, during talks between Pandit Nehru and Sheikh Abdulla, an agreement called Delhi agreement was signed. This agreement involves maintenance of continuity of State Subject Law. What is State subject law? It was passed by king Hari Singh in 1927 on demand of Kashmiri pandits. According to this law, no outsider was allowed to acquire any property or land in state of J&K. They were neither given any stakes in government jobs nor access to scholarships.
Origin of Article 35-A
Sheikh Abdulla wanted to continue this system in J&K. In a constitution which contains articles for fundamental rights of equality (article 14), non-discrimination (article 15) and right of life (article 21), it was difficult to incorporate such system which is itself discriminatory among citizens. Nehru found a way. This solution was article 35-A. This article suggests that no Indian is allowed to have above rights in J&K even if it violates articles 14, 15 and 21. Article 35-A was born out of a presidential order promulgated in 1954. This presidential order gives special power to state legislature of J&K to define permanent residents of state and grant them special rights. Thus, it was helpful in preserving the state subject law of 1927 passed by king Hari Singh. In 1956, new constitution of J&K was enforced and J&K became integral part of India. Constituent assembly of J&K was abolished. This was whole story of genesis of article 370 and article 35-A, which are constitutional articles for giving special status to state of Jammu & Kashmir. The next part is about the controversies about these constitutional provisions especially article 35-A.
Controversy about this issue
Recently this article was challenged by "We the citizens", a think tank of J&K. The petition was filed on the ground that the article was incorporated in to constitution by a presidential order only not by parliamentary debates and discussions. The article 35-A is said to be unconstitutional in the petition and violates articles 14, 19 and 21 of Indian constitution. This is alleged in media that this article is giving special treatment to citizens of J&K and creating a class within a class of Indian citizens. Such petitions were also filed in past. The demands to scrap these constitutional provisions have raised. Counterarguments suggest that presidential order is actually providing a link between state of J&K and union of India. This order was actually celebrated in India as it provided path of integration. The said article in this order is only space available for citizens of J&K otherwise all the provisions of Indian constitution can be applied to the state. Moreover, scrapping of these constitutional articles (article 370 and article 35-A) requires consent of constituent assembly of J&K which was abolished in 1956. If constituent assembly is reconstituted then it can even declare independence on account of being a sovereign body. And if these articles are scrapped without taking consent of constituent assembly then it will be a chaotic situation.
*Constituent Assembly is a sovereign body and writes constitution for the country.
See Other Posts: Jammu & Kashmir, a new configuration set up by Government of India
This article talks about special status of state of Jammu & Kashmir in Union of India. It discusses the constitutional provisions about J&K in article 370 and article 35-A. It also describes the recent controversies against these provisions.
Background
Situation in Kashmir
Origin of Kashmir Issue
Roots of Article 370
Stands & Involvements of different parties
Origin of Article 370
Nehru-Sheikh Talks
Origin of Article 35-A
Controversy about this issue
Background
In 1947, it was realized that division of India was inevitable. The country was going to divide in to two new parts, India and Pakistan. The then existing princely states, which were 565 in number, were given an opportunity to join either side. But there were issues related to joining of few presidencies. One of them was Kashmir.
Situation in Kashmir
Kashmir was ruled by a Dogra king, Hari Singh. He wanted to remain independent rather than joining any of the new country. Protests started in Kashmir against his decision. These protests were led by Mohammad Sheikh Abdulla who wanted to accede India though majority of population in Kashmir was Muslims.
Origin of Kashmir Issue
Pakistan did not like his stand and attacked on Kashmir in October 1947. Hari Singh approached the then Prime Minister of India, Pandit Jawahar Lal Nehru, for help. The Governor General Mountbatten clarified that no help will be provided by India unless Jammu & Kashmir accede Union of India or sign an instrument of accession. After little delay, Dogra king signed an instrument of accession and sought help from India against Pakistan in war.
Roots of Article 370
The instrument of accession signed by Hari Singh was different from those signed by rulers of other princely states. This instrument transferred power on only three subjects to Union of India. These subjects were: Defence, external affairs and communication.
Stands & Involvements of different parties
King Hari Singh: He signed instrument of accession (IoA).
Sheikh Abdulla: He was made Prime Minister of the state of Kashmir. He called for a separate constituent assembly* for Kashmir. Pandit Nehru agreed for it.
India: After signing of IoA, India got engage in war with Pakistan. Pandit Nehru approached United Nations for ending this war.
United Nations (UN): UN passed a resolution on Kashmir and called for demillitarization of the region, ceasefire and a plebiscite on issue of Kashmir. Plebiscite involves knowing the opinion of public.
Origin of Article 370
When all these events were happening, at the same time, Indian constitution was being drafted. Constitution makers had to define the relation of Kashmir with union of India. It was a difficult situation for them. As said earlier, this instrument was different from those signed by other princely states. It was not a complete merger with India. Thus, a special status had to be accorded to this state which also seemed to be discriminatory. The matter was debated for about five months in constituent assembly of India. After prolonged discussion, an article was written which was devoted to Jammu & Kashmir. This is article 370 in Indian constitution which gives special status to state of J&K. The factors which gave birth to article 370 were as following:
(a) Time was not suitable for complete integration of J&K, in to Indian Union.
(b) Prevailing conditions were unusual due to war with Pakistan.
(c) Some territories of India were also occupied by Pakistan.
(d) United Nations was also involved in this issue.
(e) Will of people was also important. India wanted to use its soft power rather than force.
Nehru-Sheikh Talks
In 1952, during talks between Pandit Nehru and Sheikh Abdulla, an agreement called Delhi agreement was signed. This agreement involves maintenance of continuity of State Subject Law. What is State subject law? It was passed by king Hari Singh in 1927 on demand of Kashmiri pandits. According to this law, no outsider was allowed to acquire any property or land in state of J&K. They were neither given any stakes in government jobs nor access to scholarships.
Origin of Article 35-A
Sheikh Abdulla wanted to continue this system in J&K. In a constitution which contains articles for fundamental rights of equality (article 14), non-discrimination (article 15) and right of life (article 21), it was difficult to incorporate such system which is itself discriminatory among citizens. Nehru found a way. This solution was article 35-A. This article suggests that no Indian is allowed to have above rights in J&K even if it violates articles 14, 15 and 21. Article 35-A was born out of a presidential order promulgated in 1954. This presidential order gives special power to state legislature of J&K to define permanent residents of state and grant them special rights. Thus, it was helpful in preserving the state subject law of 1927 passed by king Hari Singh. In 1956, new constitution of J&K was enforced and J&K became integral part of India. Constituent assembly of J&K was abolished. This was whole story of genesis of article 370 and article 35-A, which are constitutional articles for giving special status to state of Jammu & Kashmir. The next part is about the controversies about these constitutional provisions especially article 35-A.
Controversy about this issue
Recently this article was challenged by "We the citizens", a think tank of J&K. The petition was filed on the ground that the article was incorporated in to constitution by a presidential order only not by parliamentary debates and discussions. The article 35-A is said to be unconstitutional in the petition and violates articles 14, 19 and 21 of Indian constitution. This is alleged in media that this article is giving special treatment to citizens of J&K and creating a class within a class of Indian citizens. Such petitions were also filed in past. The demands to scrap these constitutional provisions have raised. Counterarguments suggest that presidential order is actually providing a link between state of J&K and union of India. This order was actually celebrated in India as it provided path of integration. The said article in this order is only space available for citizens of J&K otherwise all the provisions of Indian constitution can be applied to the state. Moreover, scrapping of these constitutional articles (article 370 and article 35-A) requires consent of constituent assembly of J&K which was abolished in 1956. If constituent assembly is reconstituted then it can even declare independence on account of being a sovereign body. And if these articles are scrapped without taking consent of constituent assembly then it will be a chaotic situation.
*Constituent Assembly is a sovereign body and writes constitution for the country.
See Other Posts: Jammu & Kashmir, a new configuration set up by Government of India
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