ABROGATION OF ARTICLE 370 & 35(A)

When asked “what was the need for inclusion of article 370 into the Indian Constitution?” the
answer given was that unlike other states Kashmir’s position was critical and the instrument of
accession was signed by Maharaja Hari Singh on the condition that Kashmir will not be fully
under control of Indian government and Indian laws. The instrument of accession is the basis
which establishes the relation between India and J&K and article 370 in this regard only
decides the degree of autonomy to be enjoyed by J&K. It has been experiencing turbulence as
to peace and security of the people living there and is a place of conflict between India and
Pakistan who has always used Kashmir Issue as a tool to turn the world and Kashmir’s citizens
against India. The UN security commission set up to solve the Kashmir problem between India
and Pakistan had issued an UN resolution in 1948 under which part (3) read that Pakistan shall
vacate POK (all its troops and tribesmen) and India shall be allowed to retain its troops and also
stated to hold a mechanism to ensure plebiscite in the state, the problem arose when none of the
countries acted on this agreement and it became too late to get POK back within India. Article 1
of J&K constitution 1956 reads as “the state of J&K(including POK) is and shall be an integral
part of India” and this article cannot be amended and it implies that J&K had taken the decision
to be a part of India, so there is no question of plebiscite. Article 370 enables the state of J&K to
be governed by its own constitution and have its own flag. Under this article the government of
India can only apply laws related defense, communications and finance. For applying any other
Indian law concurrence of state’s government is needed i.e. the Indian government can only
declare emergency during some external aggressions and not during any internal turbulence. As
such it became difficult for the central government to handle the separatist tendencies and
tensions in the state and to apply public welfare schemes like providing reservation to the
minority communities in the state but now that this article has been removed and the state is
made a union territory with a legislature it has come under direct protection and control of the
central government. The title of this article reads that it is only a temporary provision. Clause 3
of article 370 empowers the president to declare that this article ceases to be operative by issuing
a notification provided that it is to be done on recommendation of the constituent assembly of the
state. The government has very wisely used this article to make its own self ineffective. The
constituent assembly of the state had been created in 1951 and it framed the constitution in
September 1956 so if the constituent assembly ended in 1956 there was no need to receive any
recommendation post 1956 and the provision provided clause 3 becomes ineffective. The
opposition opposing this move should go back in time and remind itself that first Prime Minister
Jawaharlal Nehru who was behind the creation of this article weakened it by misusing the power
of president provided under this article many a times. This article was referred as a tunnel in the
walls of the state of J&K providing for the entrance of the Indian constitution. After removal of
this power the government of India can now impose internal emergency in case of any internal
aggressions or breakdown of financial machinery and thus will be able to handle the present
situations in the state more effectively. For achieving all good results of this bold move taken by
the government a good implementation of this idea is necessary, the government should confront
the residents of the state and hold bilateral talks with them and should try to make them
understand the benefits they’ll be getting after this article is removed and the problems they were
facing due to presence of such provisions.

A lot of case has been filed in the Supreme Court to decide the validity of article
35(a). This article was introduced by issuing an ordinance by the president which needed the
approval of the parliament but the approval of the parliament was not received hence the very
basis of this article is void. This article was regarded as the main hurdle which came on the way
of the development of the state as it had many faulty provisions like no person who is not the
permanent resident of the state cannot be admitted to any educational institution or provided
government job, he cannot buy any immovable property in the state, he cannot vote or get any
scholarship, he cannot be a member of the state legislative assembly and cannot enjoy other
social benefits. The valmikis (dalits) who were brought in the state in 1957, the west Pakistani
refugees and Gorkhas were not given permanent residence certificate because of which their
condition in the state had become worst as they were not able to hold any land or get any jobs or
education. Having such a great Indian constitution the Indian government was unable to give
justice and rights as they deserve to such people due to this article of 35(a). No outsider was
allowed to hold any property in the state whereas the residence of the state could hold property in
any part of India, as such no company was able to invest and set up manufacturing units in the
state thus depriving the citizens of state of employment, no educational institutions were being
able to be set up in the state by the central government and no non- resident professor or doctor
could work in any of state’s institutions thus depriving them of quality education and quality
medical facilities and hospitals. This article also led to gender inequality as no women of the
state could hold any land or property if she marries an outsider and her children were also
deprived of the right to succession in the state’s property while if a man marries an outsider he
will have the same rights as before. As such the government of the state had an exclusive power
to decide who is a permanent resident of the state and who is not. This is to be regarded as a very
bold and required move of the government which if implemented properly will help the
government not only to tackle the separatist tendencies, terror funding, internal aggressions and
tensions in the state but also to bring the state under control of the union government which will
aid in development of the employment, education, minority communities, infrastructure, health,
tourism, economy and other social welfare scheme in the state. The long prevailing
discrimination due to article 35(a) between men and women will come to an end by ending this
provision. If a woman unfortunately goes through divorce with her husband she was not entitled
to live in her home land among her native people as she was not able to get job and admit her
child to any educational institution. The existence of this provision though not expressly but
consequentially put restriction on her free will to marry a person of her own choice and even if
she wanted to be among her natives this provision consequentially disabled her from doing so (to
understand this you can keep yourself in her shoes i.e. you want to marry a person of another
state but you are afraid to lose your rights and your property which is in the state forever so you
abstain from marrying him and you will have to marry someone else). The women who were
earlier deprived of property, scholarship, job or service in the state after marrying man of another
state will not be deprived of any of their rights which were conferred on them since their birth.
The objective of Indian constitution which is to ensure equality of status and opportunity and
justice social, economic and political to all its citizen will now be achieved to its fullest which
was earlier denied to some people living in Kashmir who are recognized as citizens of india by
the Indian constitution. A state should not be given an exclusive power to decide who will be its
permanent residents and who will not as it will lead to misuse of the powers. The constitution of
india declares it to be a union of states and it does not differentiate between the residents of J&K
and residents of rest of the country, it consider all of them as its citizens so it should ensure that
none of its citizens is deprived of equality and justice and it should ensure that no inequality is
done by the state of J&K in the name of “special status”. Due to Geo-strategical and Geo-
political nature of the territories of J&K and Ladakh it is a very fantastic move of the
government.