Article 370 and 35A of the Constitution of India

(Practice Questions:

Q.1. The much debated Article 370 and Article 35A of the Constitution of India have an intricate relationship. Comment. – 150 words.

Q.2. To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss the future prospects of this provision in the context of Indian polity. – 200 words – Asked in UPSC CSE Mains – 2016.)

What is Article 370 of the Constitution of India?

Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of Jammu & Kashmir has been accorded special status under Article 370. All the provisions of the Constitution which are applicable to other states are not applicable to J&K.

Under the provisions of Article 370, the Parliament needs J&K government’s nod for applying laws in the state — except defence, foreign affairs, finance, and communications.

The law of citizenship, ownership of property, and fundamental rights of the residents of J&K is different from the residents living in rest of India. Under Article 370, citizens from other states can not buy property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency.

Source: Times of India and Business Standard

The basic purpose of the insertion of Article 370 was to ensure that the distinct character and identity of the Jammu and Kashmir State is preserved.

Relationship between Article 35A and Article 370

What does the Constitution of India say – The specific important provisions of the Constitution in this context are: Article 370(1)(d) and Article 35A 

“Article 370 – Temporary provisions with respect to the State of Jammu and Kashmir – 

(1) Notwithstanding anything in this Constitution,……

(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.”

“Article 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 and Kashmir; or

(b) 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.”

Therefore, while Article 370 (specifically Article 370(1)(d)) empowers the President of India to allow the enactment of special provisions for the state of Jammu and Kashmir, Article 35A is the result of the exercise of such a power by the then President of India.

Article 35A of the constitution is a derivative of Article 370, which allows the Jammu and Kashmir Assembly to define who is a permanent resident, who is eligible to vote and work for the state, who can own land and get admission in colleges. Article 35A is a set of laws which relate to equality, equality of opportunity in matters of public employment and reservations. Article 35A also gives rise to a situation wherein a person who migrated to POK at the time of partition and returned on valid documents is eligible to buy property in the State while the Indian Citizen cannot.

Source: Greater Kashmir

Is Article 370 a “temporary provision”?

The Supreme Court has said that Article 370 of the Constitution is not a “temporary provision”. The apex court said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was “not a temporary provision”.