What is Article 35a and What Rights it Provides to Jammu and Kashmir State

To answer the questions of what is article 35a and what rights it provides to J&K state, we have to look back to the constitution and the time it was being written. Article 370, added to the Constitution on October 17, 1949, exempts J&K from the Indian Constitution (save for Article 1 and Article 370 itself) and allows the state to draught its own. In relation to J&K, it limits Parliament's legislative abilities. Only "consultation" with the state government is required to extend a central law to subjects covered by the Instrument of Accession (IoA). However, the state government's "consent" is required before it can be extended to other areas. When the Indian Independence Act of 1947 separated British India into India and Pakistan, the IoA came into play.

The Act established three alternatives for the 600 princely states whose sovereignty was restored after Independence: remain independent, join the Dominion of India, or join the Dominion of Pakistan — and this joining with any of the two countries had to be done through an IoA. Despite the lack of a specified form, a state interested in joining could indicate the terms on which it consented to do so. The maxim governing state-to-state transactions is pacta sunt servanda, which means that agreements made between states must be kept; if a contract is broken, the general norm is that the parties must be returned to their former position. Article 371, from 371A through 371I, grants special status to a number of other countries.

How did the Accession Come About?

Raja Hari Singh had decided to remain independent and negotiate standstill agreements with India and Pakistan, which Pakistan did. However, following an invasion by Pakistani tribesmen and plainclothes, he requested India's assistance, which in turn sought Kashmir's admission to India. On October 26, 1947, Hari Singh signed the Instrument of Accession, which was recognised by Governor-General Lord Mountbatten on October 27, 1947.

India's declared policy was that any dispute over accession should be resolved in accordance with the preferences of the people rather than a unilateral choice by the princely state's monarch. Lord Mountbatten stated in India's acceptance of the IoA that "it is my Government's aim that the subject of the State's accession be determined by a reference to the people as soon as law and order have been restored in Kashmir and her soil has been freed of the invader." As stated in the Government of India's White Paper on J&K in 1948, India regarded accession as entirely temporary and provisional.  

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What is Article 35a and Article 370 and What rights it Provides to Jammu and Kashmir State?

Article 370 enacted: The original draft was provided by the J&K government. On May 27, 1949, the Constituent Assembly passed Article 306A (currently 370) after modifications and negotiations. Though accession was complete, Ayyangar moved the resolution, saying that India had pledged to hold a plebiscite when the prerequisites were met and that if accession was not confirmed, “we shall not stand in the way of Kashmir divorcing herself from India.” When India's Constituent Assembly ultimately incorporated Article 370 in the Constitution on October 17, 1949, Ayyangar reaffirmed India's commitment to a plebiscite and the creation of a separate constitution by J&K's Constituent Assembly.

Was Article 370 a Temporary Provision?

It is the first article of the Constitution's Part XXI. ‘Temporary, Transitional, and Special Provisions' is the title of this section. Article 370 might be viewed as temporary in the sense that the J&K Constituent Assembly had the authority to change, eliminate, or maintain it; nonetheless, it chose to keep it. Another view was that the accession was only temporary and would be followed by a vote. In a formal response to Parliament last year, the Union administration stated that there is no plan to repeal Article 370. In Kumari Vijayalaksmi (2017), the Delhi High Court also dismissed a plea claiming that Article 370 is only temporary and that continuing it is a violation of the Constitution. Despite the use of the word "temporary" in the headnote, the Supreme Court ruled in April 2018 that Article 370 is not temporary. The Supreme Court refused to consider Article 370 as temporary in Sampat Prakash (1969). “Article 370 has never ceased to be operative,” a five-judge bench said. As a result, it is a long-term provision.

Can Article 370 be Deleted?

Yes, a Presidential Order under Article 370(3) allows for deletion. However, such an order must be preceded by the approval of J&K's Constituent Assembly. One point of view is that because such an Assembly was dissolved on January 26, 1957, it can no longer be removed. However, another view holds that it is possible, but only with the approval of the State Assembly.

What is Article 370’s significance for the Indian Union and what rights it provides to Jammu and Kashmir state?

Article 1 of the Constitution, which includes J&K in the list of states, is mentioned in Article 370. Article 370 has been referred to as a "tunnel" via which the Constitution is applied to the state of Jammu and Kashmir. On November 27, 1963, Nehru stated in the Lok Sabha that "Article 370 has eroded." At least 45 times, India has invoked Article 370 to extend the Indian Constitution's provisions to J&K. This is the only method India has effectively neutralized the effect of J&K's special status through Presidential Orders. Almost the entire Constitution, including most constitutional amendments, was extended to J&K by the 1954 order. Ninety-four of the 97 Union List entries apply to J&K; 26 of the 47 Concurrent List items have been extended to the state; and 260 of the 395 Articles, as well as 7 of the 12 Schedules, have been extended to the state.

The Centre has exploited Article 370 to change a number of elements of the J&K Constitution, despite the fact that the President does not have such power under Article 370. Article 356 was expanded thanks to a similar clause in Article 92 of the J&K Constitution, which stated that the President's Rule could only be imposed with the President's consent. Article 370 was used to convert the Governor from being elected by the Assembly to being a nominee of the President. In Punjab, the government needed the 59th, 64th, 67th, and 68th Constitutional Amendments to prolong the President's authority beyond one year, but in J&K, the same outcome was obtained simply by invoking Article 370. Article 249 (authority of Parliament to pass laws on State List entries) was once again extended to J&K without the Assembly's approval and solely on the Governor's request. In certain ways, Article 370 limits the authorities of J&K in comparison to other states. Today, it is more useful to India than J&K.

What is Article 35A and Why is it Being Challenged?

Article 35A is derived from Article 370, which was enacted by Presidential Order in 1954. Article 35A is remarkable in that it is found in Appendix I rather than the main body of the Constitution (Article 35 is immediately followed by Article 36). The J&K legislature has the authority to define the state's permanent inhabitants and their unique rights and benefits under Article 35A.

The Supreme Court will consider whether it is unconstitutional or breaches the Constitution's fundamental framework. However, unless it is enforced, many Presidential Orders may be questioned. Article 35A was inserted through a Presidential Order on the proposal of J&K's Constituent Assembly, rather than through the amending process outlined in Article 368.

Article 370 is not only a part of the Constitution but also of the underlying structure of federalism. As a result, the Supreme Court has affirmed several Presidential Orders issued under Article 370.

According to Waman Rao (1981), Article 35A cannot be examined on the basis of fundamental structural theory because it predates 1973. Several other states, notable ones in the Northeast and Himachal Pradesh, have enacted similar limitations on land purchases. Domicile-based reservations in admissions and even jobs are used in a number of states, notably in undivided Andhra Pradesh under Article 371D.

Parent Provision in the Accession Rule and its Offshoot

Article 370

It has been part of the Constitution from its inception, and it states that just two articles apply to J&K: Article 1, which defines India, and Article 370. Other provisions of the Constitution can apply to J&K "subject to such exceptions and adjustments as the President may by order define," with the state government's consent and the J&K Constituent Assembly's approval, according to Article 370.

Article 35A

It was established by Presidential Order in 1954, and it allows the J&K legislature to define what constitutes a "permanent resident" of the state, as well as to grant particular rights and advantages to such permanent residents.

This article should solve all the queries regarding what is article 35a and what rights it provides to J&K state? Happy Learning!