Article 370 and Article 35A: Key Elements and Abrogation

Article 370 has historically remained a hot topic in India. A common consensus in the country called for its abrogation to create a country with one Constitution and one flag. The Article provides special status to the erstwhile State of J&K in matters of governance, land ownership, and employment among many other things. Thereby giving rise to a sense of partiality in the world’s largest democracy. Thus, on the 5th of August 2019, Article 370 and 35A were revoked. At the same time, J&K was bifurcated and made into a new union territory. In this blog, let us see in detail what Article 370 of Indian Constitution is and the key points related to it.

What were the Key Elements of Article 370 of the Indian Constitution?

Article 370 consisted of provisions and laws that paved the way for special and autonomous status in Jammu and Kashmir. Due to this, the Centre was not entitled to execute laws in J&K without the permission of the State. Here are some of its important provisions as derived from the Indian Constitution:

• One of its paramount provisions was that it guaranteed that the Indian Parliament shall seek approval from the Constituent Assembly of the Jammu & Kashmir governments before implementing any laws or provisions or before extending the amendments of existing laws to the erstwhile State.

• Apart from this, the central government cannot call out a Financial Emergency under Article 360 or for any other internal disturbance in the country. Furthermore, the exemption was guaranteed only in matters of External Affairs, Defence, Finance and Communication.

• An Emergency can only be called out or revoked in J&K by the central government if there is a state of war in the entire country.

• In the case of citizenship rights, land ownership, rights of property or Fundamental Rights, like education and human rights, the people of Jammu and Kashmir were different from the citizens of other states in India. Hence, no resident of India was eligible to purchase any property in J&K.

• It is pertinent to write that it was Article 370(1)(c) which mentioned that Article 1 of the Constitution of India applies to Kashmir through Article 370.
  • Article 1 enlists the various states of the Union.
  • It explicitly means that it was Article 370 that tied the state of Jammu and Kashmir to the Indian country and abrogation of Article 370, was possible only through a Presidential order. 

• Under this article, the Right to Education was not applicable in the country.

Also Read: Important Articles in Indian Constitution [Complete List]

What was Article 35A?

Article 35A was considered the seed of Article 370. It provided the fundamental base for it. Article 35A was inserted into the Constitution of Jammu and Kashmir in 1954. Moreover, the order for its application was pronounced by the then-President Rajendra Prasad. It was because of this Article, within Article 370, that no outsider could buy or own property within J&K. Neither was it possible for any citizen outside of J&K to apply for a job in Jammu and Kashmir. All these privileges were exclusive to its ‘Permanent Citizens’, who owned a hereditary State subject. The aforementioned term ‘Permanent Residents’ in our Article 370 blog has a special meaning in the Indian constitution. 

Furthermore, let us understand it by observing the Features of Article 35A:

• All the rights as a permanent resident under the Constitution of Jammu and Kashmir are given to the person who is:
  • A state subject on the 14th of May 1954.
  • A citizen of the State for at least 10 years.
  • Lawfully owns a property in the State.
• All the permanent resident of the State must have their Permanent Resident Certificate which declares their right in the State.
• Additionally, the definition of a permanent resident can be altered by the State legislature with a minimum of two-thirds majority.
• Article 35A also identifies the citizens as permanent residents who had earlier migrated to Pakistan but have now returned.

Also Read – The Making of Indian Constitution [Constitutional Design]

What are the Changes After the Abrogation of Article 370?

On the 5th of August 2019, Article 370 and 35A were revoked leading to numerous changes in the country. Now, Jammu and Kashmir no longer qualifies as a State and has become a Union Territory. Also, now no special powers or perks are given to the citizens of J&K. They are treated like any other citizen of India. Here are the Amendments in the Indian Constitution in terms of Article 370:

• Jammu and Kashmir will now have no autonomous and special status.
• Every provision and law within the Indian Constitution can be extended to J&K with full force.
• Directive Principles of State Policy and Fundamental Duties are now implemented in J&K.
• Union Territory of J&K will not have any separate flag.
• Financial Emergency can be extended to the UT without having to receive prior ratification from its Assembly.
• If a woman from UT marries a person from any State in India, she does not lose her property rights.
• RTI (Right to Information) and Right to Education are now a part of the rights of the people of J&K.

Also Read: Where Does the Indian Constitution Draw Heavily From? Find Out Here

What is the Supreme Court’s Verdict on the Abrogation?

Many questions were asked regarding the sudden abrogation on the 5th of August, some terming it to be legally invalid. Therefore, seeking the help of the Supreme Court to intervene and look for its legality. 

The Supreme Court made a 5 Bench judgement with the Chief Justice of India as the presiding judge. Moreover, they gave a unanimous judgment on the 11th of December 2023. In addition, they upheld the decision of the Government of India by answering some questions.

1. The Supreme Court held that J&K did not retain any element of their sovereignty when they were accessioned into India in 1947. Moreover, the “unique” and “special status” of Jammu and Kashmir is invalid.

It also read the essence of the Constitution of India and Jammu and Kashmir being an integral part of the Union of India from Article 1 of the Constitution of India. 

2. Another important question that the apex court answered was whether Article 370 of the Indian Constitution was a temporary or a permanent provision of the Constitution. Furthermore, CJI Chandrachud presented textual evidence and termed it to be historically a temporary provision mentioned in the Constitution.

3. The third question was related to the effective abrogation of the Article. However, the Court upheld the proclamations of the President in the decision taken in August 2019 and has termed it as not mala fide but valid. 

The court held the abrogation as Constitutionally Valid and gave a nod for the status of Statehood to Jammu and Kashmir. Moreover, the elections of the Legislative Assembly are to be conducted in the region.

The Supreme Court has also directed the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir by the 30th September 2024.

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Lastly, we hope you liked our blog and gained an understanding of Article 370 of Indian Constitution. Moreover, you may even read more blogs and empower yourself with knowledge regarding Civics and Polity!