In the notification issued by President Ram Nath Kovind on August 6, it was stated that in exercise of the powers conferred by clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August 2019, all clauses of the said Article 370 shall cease to be operative except the following which shall be read as under, namely all provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other Article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment, ordinance, order, by-law, rule, regulation, notification, custom or usage have the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise.
The premise of this special Article emanates from residency laws issued by the then Maharaja Hari Singh to prevent migration of people from neighbouring Punjab during the British rule. Such restrictions on non-permanent residents to purchase lands are not unique to Jammu and Kashmir as Himachal Pradesh and several North Eastern states too have this provision.
The IoA signed on October 26, 1947 by the then ruler Raja Hari Singh had mentioned in Clause 5 that accession terms cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by him by a supplementary instrument.
Article 35A of the Indian Constitution, which stemmed out of Article 370, gave powers to the Jammu and Kashmir Assembly to define permanent residents of the state, their special rights and privileges.
The Jammu and Kashmir Constitution adopted on November 17, 1956 defines a ‘permanent resident’ as a person who was a state subject as of May 14, 1954, or has been a resident in the state for 10 years on that date, with a legally acquired property.
Non-permanent residents cannot acquire immovable property, get government employment, scholarships or other aid provided by the state government. The unique Article was inserted in the Constitution through a Presidential order in 1954 instead of an Amendment moved through Parliament. Article 35A does not appear in the main body of the Constitution and is listed in Appendix I. Clause (J) of the Appendix states after Article 35, a new Article 35A shall be added.
Article 35A states: Saving of laws with respect to permanent residents and their rights — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects — (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State;
or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.
In 2002, the Jammu and Kashmir High Court had struck down the provision of women losing their permanent resident status if they married a non-permanent resident. Their children still cannot have succession rights. Article 35A is under challenge in the Supreme Court as it was not added through a Constitutional amendment and other related issues.
Under Article 370(3): Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:… Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
In the State bank of India vs Santosh Gupta and Others case, the Supreme Court had ruled that Article 370, though was intended to be temporary or transitional, has become a permanent feature of the Constitution for the reasons mentioned in Article 370(3) that says that without recommendations of the State Constituent Assembly, it could not be abrogated.
The notification issued by President Ram Nath Kovind abrogating Article 370 on Monday declared: in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.
Maurya emperor Ashoka had a strong connection with Kashmir. He founded the city of Srinagar and brought Buddhism to Kashmir, which saw a number of ruling dynasties till the middle of fourteenth century. Around this time, a Tibetan Buddhist refugee Rinchana, who later converted to Islam, established first Muslim dynasty in Kashmir. When Akbar became the Mughal emperor, he annexed Kashmir to his empire.
The state of Jammu and Kashmir acquired its modern shape under Ranjit Singh, who established a Sikh confederation and annexed Kashmir from the Mughal empire in early 19th century. The administration of Jammu and Kashmir was given to a local chieftain from the Dogra community, who expanded it by capturing Ladakh and Baltistan for the Sikh empire.
By this time, the British rule of East India Company was getting stronger in India. The company had successfully challenged the advance of Sikh empire, whose leader Ranjit Singh was forced to sign a Treaty of Amritsar in 1809, which was formalised in 1846 after first Anglo-Sikh war. This treaty decided the fate of Jammu and Kashmir.
The British trader-rulers “sold” the dominion of Jammu and Kashmir to Dogra king Gulab Singh for Rs 75 lakh. The Dogra king ruled over the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and Ladakh. The arrangement continued till 1947, when the British divided the Indian subcontinent into two countries – India and Pakistan.
Jammu and Kashmir ruler Hari Singh appeared to chart out his own way without acceding to India or Pakistan. It signed a standstill treaty with Pakistan, which breached the agreement by invading Jammu and Kashmir in October 1947. India did not intervene till Hari Singh signed the Instrument of Accession with India and sought help from New Delhi.
Hari Singh sought special privileges for his people on the lines of a 1927 law that denied outsiders the right to own property in the state. This law restricted the right to own property in Jammu and Kashmir in line of inheritance only. This had been brought apparently to keep the Britishers away from the salubrious Valley of Kashmir.
The Jawaharlal Nehru government agreed to Hari Singh’s condition subject to future final settlement. The matter was placed before the Constituent Assembly of India, which was dealing with the task of framing the Constitution of India. After a lot of deliberation, Article 370 was inserted in the Constitution’s twenty-first part that proclaimed it to be “Temporary, Transitional and Special Provision”.
Article 370 provided for a special status to Jammu and Kashmir, which was granted to it through the Presidential Order of 1954. The Narendra Modi government earlier this week revoked the special status to Jammu and Kashmir through Presidential Order of 2019.
