Background: Article 35A
Background: Article 35A
Clause (1) of Article 370 of the Constitution had issued the Constitution
(Application to Jammu and Kashmir) Order, 2019. Through this, Government of
India has made modifications in Article 370 itself (not revoked it).
With this, the Government of India has dramatically altered the relationship
between the state of Jammu and Kashmir and the Indian Union.
Background
On October 17, 1949, Article 370 was added to the Indian constitution, as
a 'temporary provision', which exempted Jammu & Kashmir, permitting it to draft
its own Constitution and restricting the Indian Parliament's legislative powers in the
state.
o It was introduced into the draft constitution by N Gopalaswami
Ayyangar as Article 306 A.
Under Article 370: The Constituent Assembly of Jammu & Kashmir was
empowered to recommend which articles of the Indian Constitution should apply to
the state,
o The J&K Constituent Assembly was dissolved after it drafted the state's
constitution. Clause 3 of the article 370gives the President of India the power to
amend its provisions and scope.
Article 35A stems from Article 370 and was introduced through a Presidential
Order in 1954, on the recommendation of the J&K Constituent Assembly.
o Article 35A empowers the Jammu & Kashmir legislature to define the permanent
residents of the state, and their special rights and privileges.
o It appears in Appendix I of the Constitution.
Key Changes
Constitutional challenges
o Presidential order that sought to abrogate of Jammu and Kashmir’s special status,
according to Article 370 (3) the President would require the recommendation of
the constituent assembly of Jammu and Kashmir to make such a change.
o However, the 2019 Presidential order adds a sub-clause to Article 367,
replacing the terms:
“Constituent Assembly of Jammu and Kashmir” to mean “legislative Assembly
of Jammu and Kashmir”.
“Government of Jammu and Kashmir” to mean “Governor of Jammu and
Kashmir acting on the aid and advice of the council of ministers”.
o The government sought to dilute the autonomy under Article 370 without bringing
a Constitutional Amendmentthat would require a two-thirds majority in the
Parliament.
This provision is currently under challenge in the Supreme
Court on the ground that it added article 35A in the Indian Constitution only
through a Presidential Order.
Conversion of Jammu and Kashmir into a Union Territory is in violation of
Article 3, as the Bill was not referred to the President by the State Assembly.
o In the reorganisation of the state, the Presidential order also requires the
concurrence of the government of the state. However, since Jammu & Kashmir
is currently under Governor’s rule, the Governor’s concurrence is deemed to
be the government’s concurrence.
Federalism issue:
o The Instrument of Accession was like a treaty between two sovereign countries
that had decided to work together.
The maxim of pacta sunt servanda in international law, which governs contracts or
treaties between states, asks that promises must be honoured.
o In Santosh Kumar v. State of J&K & ors (2017), the SC said that due to historical
reasons, Jammu and Kashmir had a special status.
o In SBI v Zaffar Ullah Nehru (2016), the SC held that Article 370 cannot be
repealed without the concurrence of the Constituent Assembly of Jammu and
Kashmir.
Possible Consequences