In the eye of J&K storm: Article 370 and Article 35A

After hours of ambiguity looming over the situation in Kashmir, Home Minister Amit Shah, on Monday, announced the revocation of Article 370 in the Rajya Sabha. This also means that Article 35A, which branches out of Article 370, is repealed.

What did the two Articles stand for?

Article 370

Article 370, which was included in the Indian Constitution in 1949, stated the 'Temporary provisions with respect to the State of Jammu and Kashmir,' which granted the state special autonomy. It was categorised under Part XXI [Temporary, Transitional and Special Provisions], which includes special provisions for states like then Maharashtra and Gujarat, Assam, Nagaland, Sikkim, Manipur, Mizoram, Goa, Andhra Pradesh, Arunachal Pradesh, in different capacities furnished at different points.

The Article gave the Jammu and Kashmir Constituent Assembly the power to draft its own constitution and exempted the state from most of the provisions of the Constitution of India, restricting the application of parliamentary legislative to the state.

The matters that fell under the Union and Concurrent list, were supposed to be decided by the Centre with the concurrence of the state government.

The Article also mentions the state's Instrument of Accession, signed between Jammu and Kashmir's then ruler Hari Singh and then Governor General of India, Louis Mountbatten, on October 26, 1947.

Under the IoA, the ruler had surrendered only four subjects -- defence, external affairs, communications and ancillary -- to India to make sure that the state, even after its accession, enjoyed a special sense of independence. Under Article 370, even to extend a central law on these subjects mentioned in the IoA, a consultation with the state government was required.

To ensure that the autonomy of the state wasn't under threat at any point, one of the clauses in Singh's IoA stated -- 'The terms of this my Instrument of accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument.'

In 1954, Constitution (Application to Jammu and Kashmir) Order, 1954 -- a Presidential Order -- was passed, applying a whole host of provisions from the Indian constitution to Jammu and Kashmir, diluting its autonomy. Some of them were -- the preamble, omission of the State list and extension of a number of subjects under the Union and the Concurrent list to the state.

Since 1954, 94 of 97 entries in the Union list, 26 out of 47 items of the Concurrent list, 260 of 395 Articles and 7 of 12 Schedules have been extended to Jammu and Kashmir by successive governments.

Could Article 370 be repealed?

Yes. In spite of the provisions of the Article, the President, by public notification, could declare the Article null and void or in some cases, make it operative with exceptions and modifications between the dates he/she specifies.

This, again, was to be done with the recommendation of the Constituent Assembly of the State before the President issues such a notification.

The J&K High Court, in 2015, had ruled that Article 370 was “permanent, beyond amendment, repeal or abrogation”. But it has always been a point of contention.

The 1954 Presidential Order also brought in Article 35A.

Article 35A

Article 35A, included in Article 370 with the 1954 Presidential Order, was seen as a tool to enact laws with respect to permanent residents and their rights. The classes of persons who are, or shall be permanent were to be defined under Article 35A to 'confer on such permanent residents any special rights and privileges or impose restrictions upon other persons' with respect to - employment under the State Government, acquisition of immovable property in the State, settlement in the State, right to scholarships and such other forms of aid as the State thought valid.

The Constitution of Jammu and Kashmir, enacted in 1956 but no longer in force, defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years and has lawfully acquired immovable property.

President Kovind's Order -- The Constitution (Application to Jammu and Kashmir) Order, 2019 -- which was passed today replaces the 1954 Presidential Order. Since there is no elected government in place in Jammu and Kashmir at the moment and the state is under Governor's rule, the Order said that the 'Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers.' It also replaces the expression "Constituent Assembly of the State" referred to in clause 2 of Article 370 with "Legislative Assembly of the State."

The Governor's rule in the state also translates to the power of the state Legislative Assembly being placed in the hands of the Indian parliament -- the Lok Sabha and the Rajya Sabha. The Article can hence be repealed with a simple majority in both houses, instead of a 2/3rd majority, in concurrence the President's Order.

Henceforth "All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply...," states the President's Order.