The Supreme Court shook the Indian political scenario by admitting a plea challenging the validity of special status accorded to Jammu & Kashmir by the constitutional provision under Article 370. An NGO 'We the Citizens' filed a writ petition at the Supreme Court seeking that Article 35A be struck down. In response to which, the apex court had asked the government to file a reply.
Article 370 provides special status to Jammu and Kashmir, while Article 35A gives powers to the state legislature to define permanent residents of the state and their privileges. In 2015, the Jammu & Kashmir High Court had observed that the Article 370 is a permanent feature of the Constitution and is beyond amendment, repeal or abrogation.
Article 35A reads as follows:
“Saving of laws with respect to permanent residents and their Fundamental duties of India and 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:
defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) 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.”
At the time of Indian independence, back in 1947, the princely states were given an option to join India or Pakistan or remain independent. Maharaja Hari Singh of Kashmir signed a trade agreement with Pakistan. However, the traders from Pakistan started to occupy J&K. Upon such situation, the Maharaja sought help from India and agreed to sign the instrument of accession with India.
Article 370 reads as follows:
“Temporary provisions with respect to the State of Jammu and Kashmir-
Notwithstanding anything contained in this Constitution,—
the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;
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 purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.
the provisions of article 1 and of this article shall apply in relation to that State;
- such as 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 provision 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.”
Presently, the state of Jammu & Kashmir has its own Constitution, however, the state falls under the jurisdiction of the Supreme Court of India. Further, in case of an emergency, President’s rule under Article 356 apply to the State except for the financial emergency. Also, the Directive Principles of State Policy do not apply to the State of J&K. Under Article 368, an amendment to the Constitution shall not apply to the State until the President by order applies it to the State.
The key point of contention is that the citizens from others parts of India can neither easily migrate to J&K nor acquire land in the state. The state prides on being unique this way and there is a claim that such "uniqueness" breeds further separatism. The consequence of repealing the article might propel separatism and invite trouble. Article 370 is sacrosanct for the Kashmiri population. Revoking the provision to benefit the trouble-free majority can invite trouble for the suppressed minority.
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