Article 370, J&K Reorganisation Act 2019 – UPSC Guide

Intro

Jammu and Kashmir is the only Muslim-majority state in a Hindu-majority nation. Article 370 was the basis of Jammu and Kashmir’s accession to the Indian union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from the British rule in 1947. The article, which came into effect in 1949, exempts Jammu and Kashmir state from the Indian constitution. It allows the Indian-administered region jurisdiction to make its own laws in all matters except finance, defense, foreign affairs and communications. It established a separate constitution and a separate flag and denied property rights in the region to the outsiders. That means the residents of the state live under different laws from the rest of the country in matters such as property ownership and citizenship. President’s Rule under article 356 of the Constitution of India was ended in the state of Jammu and Kashmir on the night of 30 October 2019.

Context

Maharaja Sir Hari Singh (23 September 1895 – 26 April 1961) was the last ruling Maharaja of the princely state of Jammu and Kashmir during British Raj. Prior to the 1947 partition, which established India and Pakistan as separate nations, J&K was a Muslim-majority princely state that was subject to indirect, rather than direct, rule under the British. This status gave the region’s Hindu ruler, Maharajah Hari Singh, the power to decide whether the state would accede to India or Pakistan in 1947 — or become independent. An incursion by Pakistani raiders in October 1947 and a subsequent war between the two countries resulted in Hari Singh seeking India’s help, which Jawaharlal Nehru offered on the condition that Kashmir join India. Singh agreed, and signed the Treaty of Accession.

But Nehru also took two additional steps: He promised a plebiscite in Kashmir in the hopes that Kashmiris would overwhelmingly pick India, and he accorded Kashmir special status that ensured, among other things, no one but a resident of the state could buy property there. Since then, India and Pakistan have fought two wars and innumerable skirmishes over Kashmir, which has been the scene of a bloody separatist rebellion that India says is abetted by Pakistan; the plebiscite was never held. While Indian leaders welcomed his decision, Pakistan maintained that Hari Singh was in no position to make this choice on behalf of his people.

After the 1947-1948 Indo-Pakistani war, the U.N. Security Council adopted Resolution 47 in April 1948. This resolution held that Pakistan must withdraw its troops from the region, India must reduce its military presence, and India must hold a referendum to allow the Kashmiri people to determine their own fate. In elections held in Indian-administered Kashmir in 1951, voters supported J&K’s union with India. This troubled context led the Constituent Assembly of India to enact Article 370 in 1949; when the Indian constitution came into force in 1950, so did Article 370.

Article 35A of the Constitution of India

Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to them. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India under Article 370. Article 35A states the below.

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.

The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’.

The provisions facilitated by the Article 35A and the state’s permanent resident laws have been criticized over the years for their discriminatory nature, including the hardships imposed on immigrant workers, refugees from West Pakistan, and the State’s own female residents, who could lose their permanent resident status by marrying out of state.