Article 370 And Article 35A - All You Need To Know

Welcome to Jammu and Kashmir’s summer capital of Srinagar on the festive occasion of Eid-ul-Azha.”

This is how a report on The Wire reads, as of 19th August 2019.

It sounds surreal, scary and impossible, right? But it's a fact. And that’s what makes this situation all the more chilling. Amid reports of the imposition of section 144 - banning public gatherings altogether, internet bans and discussions on facism, India is battling many evils right now.  Which is why it’s important to distinguish facts from fiction and not make assumptions. As responsible citizens of a secular nation, it’s our duty to form educated opinions. So let’s see the facts on the abrogation of Article 370 and what it means.

What is Article 370?

1. Article 370 was drafted in compliance Part XXI (Part 21), which deals with "Temporary, Transitional and Special provisions”
2. The state of Jammu & Kashmir received special status according to Article 370 under the Constitution of India, coming into effect in 1949. 
3. This meant that all provisions which are applicable to other states do not apply to the state of J&K, until the state legislative assembly passes these provisions separately.
4. With the exception of defence, foreign affairs, finance, and communications, Parliament needs permission from the state government to enforce all other laws.
5. The residents of the state of Jammu & Kashmir live under a separate set of laws including those related to:
   • Citizenship
   • Ownership of property
   • Fundamental rights
6. The Directive Principle of State Policy and Fundamental Duties do not apply to the state of J&K.

Article 370 granted the state of J&K limited autonomy. 

Historically, when India became independent, many princely states merged with India under Instruments of Accession agreements. This meant that the princely states ceded power to the dominion of India when it came to defence, external affairs and communications. This also meant that the inheritors of the princely states as well as the common people willingly chose to be a part of India and decided to abide by the constitution of India.

Not so Kashmir. In the case of J&K, the state negotiated autonomy for itself with Article 370 before signing an Instrument of Accession with the Indian Union. 

It’s also important to remember that as of today, there is a Pakistan occupied Kashmir, China occupied Kashmir and the part that is clearly governed by India. There has been violence in the Indian-administered side - the state of Jammu and Kashmir - for 30 years due to a separatist insurgency against Indian rule. 

What is Article 35A?

Article 35A was added to Article 370 in 1954, issued by then-President Rajendra Prasad. The 2 main provisions it included were:

1. No outsider can own a property in J&K. 
2. No outsider can get a state job in J&K.

This article allowed the state of Kashmir to decide who qualified as a resident of the state of J&K. It defines that a person can be citizen of Kashmir if

i)He/She was born in Kashmir before 1911.
ii)He/She should own land prior to 1946.
iii)His/Her father should be Citizen of the state.

These were framed in accordance with Raja Harisingh's definition of State subjects. 

Issues Over Article 370

On 5th August 2019, the Union Home Minister of India, Amit Shah announced the abrogation of Article 370 and Article 35A of the Indian Constitution which granted the state of J&K special status. 

According to the new amendments, the state is divided into two union territories – Jammu & Kashmir (with a legislature) and Ladakh (with no legislature). This is a very significant step when it comes to managing 'things' in the valley and will have grave consequences for future generations as well. 

As always, there is a divided opinion. From the MBA exam point of view, students must understand all sides of the situation. Read on to find out more

So what really happened and what’s the problem?

As August rolled in, some new developments were observed in Kashmir. Thousands of Indian troops were deployed, the annual pilgrimage to Amarnath was cancelled, tourists were asked to leave, schools and colleges were closed, and most of all, telephone and internet services were suspended. 

It was expected that the BJP led government was preparing to cancel section 35A, perhaps in order to change the rules regarding who could own property in the state. But on 9th August, amid such extreme measures, the government shocked everyone, by repealing Article 370 itself, and changing the way India interacts with Kashmir and Kashmiris. 

The BJP led Government argued that this move puts the state of Kashmir on an equal footing with the rest of the country. They also champion the thought of development, and many projects have already been approved.

While all this sounds great, what’s the real deal? Let’s see the repercussions of this action.

Implications of the removal of Article 370

Facts:

1. J&K will no longer enjoy special status and the Indian Constitution laws will be 100 percent applicable to all residents of Jammu & Kashmir.
2. Part 4 of the Indian Constitution, the Directive Principle of State Policy and Fundamental Duties will now apply to the state of J&K.
3. There will be no separate flag for J&K now.
4. Article 360 (Financial Emergency) of the Indian Constitution will now be applicable.
5. Minorities (Hindus & Sikhs) will have 16% reservation now. This means, the scholarships which went to Kashmiris exclusively, will now be divided with other minorities too.
6. Right to Information & Right to Education will be applicable now.
7. The duration of the legislative assembly will now be five years instead of 6.
8. Article 35A will be nullified. A woman from J&K can still retain her rights and citizenship even if she marries someone out of the J&K state.
9. The Panchayats will enjoy the same powers as in other states.

Let’s check out the pros and cons of this abrogation in an objective way:

Pros

1. This move will probably open the doors of the state of J&K to new, especially private sector investments and economic development.
2. Terrorism could potentially be curbed more easily.
3. Tourism will not remain the only industry generating jobs.

Cons

1. The method of enforcing rules and creating a tense atmosphere in the state of J&K was not appreciated by the locals as well as by the common people all over India.
2. The ban on communications, internet and press, have not been received well.
3. Locals feel wronged, and feel that this is the BJP led Government’s instrument to undermine the only Muslim majority state that joined the union of India.
4. Many fear the Government’s propensity to use force and violence as has been observed in Kashmir itself. This seems like a threat to the democracy that is India. India’s identity as a secular state seems to be in jeopardy.
5. Meanwhile, faith in the current government seems to have dropped as well.
6. There is also the concern of Kashmir being treated as a development project and therefore the misuse of the natural resources in the state.

My Opinion

On the outset, it seems that the abrogation of Article 370 is a positive move for the state of J&K. But reviewing the facts and the news, show that this move has been made without the consent of the people of Kashmir itself. 

But let’s not get carried away with ideals. Let’s go back to the government’s claims that this move will bring economic development to the state. If such a thing were the end goal that our Government aims towards, it would still call for convincing the people of Kashmir, or their elected representatives, to vote for a complete integration with India.

In fact, this has happened before with the state of Sikkim. The state of Sikkim signed a treaty with India in 1950, which limited the role of India to defence, external affairs and communication, similar to the IOA signed with princely states. It was only in 1975 that Sikkim was fully integrated with India after its assembly passed a resolution to this effect and was ratified by a statewide referendum. That is the democratic way! 

But while the Modi Govt wants to project an image of a flourishing nation and a happy populace, it seems supremely unconcerned with the idea of dissent - an important instrument of a successful democracy. News about a blanket ban on the internet, troops patrolling the streets, breaking up gatherings during Eid, using section 144 to ban protests and gatherings, all of this has painted a frisson of dissatisfaction across various minds. 

Will this move prove to be a boon or a curse for India? You decide.

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