Implementation of Article 370 and 35A in Jammu & Kashmir

1. The Delhi Agreement of June 1949

The groundwork for Article 370 began with the Delhi Agreement of June 1949. This agreement was reached between Sheikh Abdullah, then Prime Minister of Jammu & Kashmir (J&K), and Indian leaders Jawaharlal Nehru and Sardar Vallabhbhai Patel. It was decided that J&K would retain internal autonomy, while India would handle defence, foreign affairs, and communications. This agreement formed the basis of the special constitutional relationship between India and J&K.

2. Role of the Indian Constituent Assembly

After the Indian Constitution was adopted on 26 November 1949, J&K’s integration took a unique route. Four representatives from the state—Sheikh Abdullah, Mirza Afzal Beg, Maulana Masoodi, and Moti Ram Baigra—joined the Indian Constituent Assembly, not through election but via nomination, reflecting the delicate and consensual nature of integration. Importantly, no voting pattern was followed; decisions were reached through mutual consultation, preserving J&K’s distinct identity.

3. Drafting of Article 370

Initially introduced as Article 306A, it was later renumbered as Article 370 in the final draft of the Constitution. Article 370 granted temporary special status to Jammu and Kashmir. It permitted the state to have its own Constitution, and laws passed by the Indian Parliament would not automatically apply to J&K unless the state government gave its concurrence. The President of India could apply provisions of the Indian Constitution to J&K, but only with the state’s approval.

4. Key Provisions of Article 370

• Clause 1: Indian Parliament’s power to legislate for J&K was limited to matters in the Union and Concurrent Lists related to defence, foreign affairs, and communications.
• Clause 2: The President could issue orders extending other constitutional provisions to J&K, but only with consultation or concurrence of the state government.
• Clause 3: The Article could cease to be operative only by a recommendation of the J&K Constituent Assembly, which was dissolved in 1957 without making such a recommendation, thus making the article effectively permanent, despite being termed “temporary”. 5. Introduction of Article 35A (1954 Presidential Order)

Article 35A was introduced through a Presidential Order in 1954, under the powers granted by Article 370. It empowered the J&K state legislature to define ‘permanent residents’ and confer upon them special rights and privileges regarding employment, property ownership, scholarships, and more. This was not debated in Parliament, and its legality was often debated in later years.

Pros of Article 370 and 35A

• Preserved cultural and regional identity: These provisions ensured that J&K retained a unique identity within the Indian Union, respecting its distinct history and majority-Muslim demography.
• Autonomy encouraged integration: It helped win over the support of key Kashmiri leaders like Sheikh Abdullah, facilitating a peaceful accession process after the traumatic events of 1947.
• Development tailored to local needs: The state had freedom to plan socio-economic policies suited to its own context, including land reforms which were more progressive than in other parts of India. Cons and Challenges
• Legal and political isolation: Article 370 created a constitutional distance between J&K and the rest of India, which some felt fostered separatist sentiments.
• Restricted rights: Indian citizens from outside J&K could not purchase land or settle in the state, leading to accusations of discrimination and economic isolation.
• Weak integration with national laws: Several progressive Indian laws (e.g., those related to reservations for SC/STs, Right to Education, and women’s rights) were either delayed or not implemented in J&K due to Article 370.

Later Developments

The J&K Constitution came into force in 1957, affirming its special relationship with India. However, over the decades, through Presidential Orders, many provisions of the Indian Constitution were gradually extended to J&K. Still, Article 370 and 35A remained contentious, often seen as symbols of either special autonomy or constitutional inequality, depending on the political lens.

Summary: Implementation of Article 370 and 35A in Jammu & Kashmir

The implementation of Article 370 and Article 35A was rooted in the Delhi Agreement of June 1949, where Sheikh Abdullah, Nehru, and Patel agreed that J&K would retain internal autonomy, while India controlled defence, foreign affairs, and communications. This unique arrangement was formalised in the Indian Constitution (26 Nov 1949), with four nominated J&K representatives participating in the Constituent Assembly.

Article 370, initially drafted as Article 306A, was a temporary provision granting J&K a special constitutional status. It allowed the state to have its own Constitution and restricted Parliament’s powers unless the state consented. Article 35A, introduced by a 1954 Presidential Order under Article 370, empowered J&K to define permanent residents and their exclusive rights, especially concerning property and jobs.

These provisions preserved J&K’s cultural identity and facilitated local governance, but also led to legal isolation, restricted rights for non-residents, and delayed national reforms. Over time, Presidential Orders gradually extended many Indian laws to the state.

Historical and Journal References

1. Constituent Assembly Debates – Government of India Archive, 1949.
2. Noorani, A.G. Article 370: A Constitutional History of Jammu and Kashmir. Oxford University Press, 2011.
3. Zutshi, Chitralekha. Kashmir’s Contested Pasts: Narratives, Sacred Geographies, and the Historical Imagination. Oxford University Press, 2014.
4. Bose, Sumantra. Kashmir: Roots of Conflict, Paths to Peace. Harvard University Press, 2003.
5. Government of India. Presidential Orders under Article 370 (1950–2019) – Ministry of Law and Justice.
   6.UPSC , Educator Lectures

To be continued… …

PART 4…….

How Article 370 & 35 A Abrogated on 5 August 2019 by Indian Government, arguing that their removal would ensure Full Integration, bring in Uniform laws and open Economic Opportunity.