Read our latest blog on Article 370 and 35 A- https://blog.finology.in/Legal-news/Article-370-and-35(A)-revoked
In this Video, we will discuss how and what led to the insertion of Article 370 and Article 35 A in the Indian Constitution and what is the reason for the popular demand of its Removal.
Refer to Part 1 of the Video: https://youtu.be/FQgzbT9yaaw
After India got its Independence, we had a huge task of Integrating princely states into the Dominion of India. 3 states who were initially reluctant to join India were: Princely states of Junagarh, Hyderabad and Jammu and Kashmir.
We have already covered how these 3 states were integrated into India, Let us now Discuss the incorporation of Article 370 and Article 35A in the Indian Constitution.
This is a well known fact that state of J&K has given Special Status by our Constitution, however many of us are still not aware out of all the states in India why only Jammu & Kashmir been entitled as one?
In Oct 1947, Pakistan broke the standstill agreement. Pakistan invaded Kashmir from North with an army of soldiers and tribesman armed with modern weapons. Jammu & Kashmir was under serious threat. When it became impossible for Hari Singh to control the troops, J&K requested India for Millitary Aid. India agreed to help subject to a condition that J&K have to accede in India. J&K agreed to accede to India.
•Thereafter, on 26th October 1954, Agreement was signed between Jawaharlal Nehru and Hari Singh, known as Instrument of Accession.
•Pakistan contested the IOA as forced and fraudulent.
•India went to the United Nation, complaining against Pakistan aggression on the soil of India and clearing it of Pakistani invaders.
•As a result of which, security council adopted a resolution for formation of United Nation Commission for India and Pakistan (UNCIP) in January 1948.
• A report was submited by UNCIP, on 7 July 1948, stating that Pakistan invaded Jammu and Kashmir and declared Pakistan an ‘aggressor’.
• Later, United Nation instructed Pakistan clear off the area of nationals and asked India to keep minimum force in Jammu and Kashmir for the maintenance of law and order in the state.
• In July 1949, India and Pakistan signed the Karachi Agreement establishing the ceasefire line.
• Millitary front was established between India & Pakistan which gradualy became a solid boundary which is known as Line of Control.
Instrument of Accession
Jammu & Kashmir surrendered only three subjects to the Union i.e. defence, external affairs and communications. Also earned the assurance that the people of Jammu & Kashmir through their own constituent assembly would draft their own constitution. Also it was said that the provisions (allowing people of Kashmir to draft their own constitution) is an interim arrangment provided by the Constitution of India.
• As this pact stated that J&K will be provided with Special Status, is because of these two added clauses as well i.e. –
Article 370 was incorporated in Part XXI i.e. Temporary, Transitional And Special Provisions of the Constitution of India.
Article 370 provides Special Status to Jammu & Kashmir, states –
1. It gives Special Status to the state J&K.
2. It restricts State’s legislature power over four heads:
• External Affairs
3. if central has to take certain steps except that four departments, they will require assent of state legislature of J&K.
ARTICLE 35A –
The Presidential order was issued under Article 370 (1) (d) of the Constitution which allows the President to make certain “exceptions and modifications” to the Constitution for the benefits of “State Subjects” of the J&K. Article 35A was debated for more than five months in Constituent Assembly before it was made a part of the Constitution
Text of Article 35A states –
a.)Give the rights of defining the term ‘Permanent Residents’ to the State Legislature.
Any person who is a state subject on may 14, 1954; or
Who has been resident of the State for 10 years and has lawfully acquired the immovable property.
b.) Conferring of other special privileges to the residents of J&K and restricted to non- residents, such as:
•Employment under State Government;
•Acquisition of immovable property;
•Settlement in State;
•Right to Scholarship or any other rights as conferred by State Government.
J&K formulated its Constitution in November 1956.
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