Conundrum of article 35-A and article 370 of the Constitution of India scrapped for Good

One Nation One Constitution

Constitution of India came into effect on 26th January 1950 and it became applicable on entire territory of India except state of Jammu and Kashmir (J&K for short). In respect of J&K a special provision was crafted in the Constitution called 370 and it was named a temporary provision. According to this provision, the President of India will be entitled to apply the Constitution of India to the State of J&K in such manner as it may please which means in pieces. This provision is as under:

“370. Temporary provisions with respect to the State of Jammu and Kashmir:
(1) Notwithstanding anything in this Constitution,

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;
(c) the provisions of Article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause ( 1 ) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

In 1954 the President of India under above article 370 of the Constitution passed the Constitution of India (Application to Jammu and Kashmir) Order, 1954 which among various provisions, this order contained following controversial provision which inserted article 35-A in Constitution:

“35A. Saving of laws with respect to 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 & Kashmir; or

B) Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects

1) Employment under the State Government

2) Acquisition of immovable property in the State

3) Settlement in the State; or

4) 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.”

In short, the above provision abdicated the authority of the Union of India to grant citizenship in favour of State of Jammu and Kashmir, in so far as a person may desirous to settle in that state.

On 5th August 2019, the President of India in exercise of his powers under article 370 itself abrogated the aforesaid Presidential Order and also the Article 370 itself and the Home Minister of India tabled the Presidential Orders in the Parliament for consideration.

The effect is that the Constitution of India applies on the State of Jammu and Kashmir in the same manner as any other State and thus establishing the principle of One Nation One Constitution.

In addition to above the Government has also proposed sweeping changes in the administration of State of Jammu and Kashmir by splitting it into two separate Union Territories.

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